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ARTICLE · 04 OCTOBER 2026

New EU Guidelines On Abusive Exclusionary Conduct: The Onus Falls On Dominant Undertakings

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The European Commission has substantially reworked its guidelines on abusive exclusionary conduct by dominant undertakings following widespread criticism of the 2024 draft. While notable improvements include reaffirming the below 40% market share safe harbor and the as-efficient competitor standard, significant concerns remain about the evidentiary burden placed on dominant firms and the EC's maximalist approach to enforcement.

European UnionAntitrust/Competition Law
Francesca Miotto
Francesca Miotto
Mark Taylor
Mark Taylor
Janek Nowak
Janek Nowak
Maria Markou
Maria Markou
Pierce O'Meara
Pierce O'Meara
Louise Tolley
Louise Tolley
Emily Bourne
Emily Bourne
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The European Commission (EC) has adopted its guidelines on abusive exclusionary conduct by dominant undertakings (Guidelines). They have been substantially reworked after heavy and widespread criticism of an earlier 2024 draft (draft Guidelines) (see our submission to the public consultation).

Notable improvements include a reaffirmation of the below 40% market share safe harbor and the as-efficient competitor standard, in particular for pricing conduct. Guidance has now been inserted on artificial intelligence and interoperability. Also welcome are the inclusion of clear “green lights” for certain conduct and a detailed section on objective justifications. 

However, many flaws remain. In particular, the overall evidentiary burden continues to lie with the dominant undertaking.

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