European Commission – Adoption Of The Guidelines On Exclusionary Abuses Under Article 102 TFEU

The European Commission has adopted Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings. 

The assessment under the Guidelines comprises three stages: determining whether the undertaking holds a single or collective dominant position in the relevant market, assessing whether its conduct distorts effective competition and, where applicable, examining any objective justification.

Key elements of the Guidelines include:

• A market share of 50% or more, where maintained over time, may in itself constitute evidence of dominance, save in exceptional circumstances. Although the Commission considers dominance generally unlikely below 40%, it may still be established where, for example, customers are dependent on the undertaking or competitors face significant capacity constraints.