Mirror, Mirror on the Wall Who Is the Least Dominant of Us All?

In this post for Steptoe’s StepAhead Blog authors Charles Whiddington & Domniki Mari share their thoughts on the European Commission’s new Guidelines on exclusionary abuses of dominance under Article 102 TFEU, adopted on September 3, 2026. Replacing the Commission’s 2009 Enforcement Priorities Guidance, the Guidelines consolidate EU case law and enforcement practice into a framework intended to improve legal certainty and help businesses assess their market position, commercial conduct, and potential Article 102 risks.

The authors highlight the Guidelines’ emphasis on self-assessment and the importance of correctly characterizing conduct. Different types of behavior can trigger different analytical and evidentiary approaches, meaning businesses must consider not only whether conduct could harm competitors, but also how it will be classified and what evidence will be relevant. Exclusive dealing, for example, may be presumed to distort effective competition once it qualifies as an exclusivity obligation.

The Guidelines also provide greater clarity on assessing dominance in evolving markets, including digital platforms, AI, data-driven markets, and technology-intensive sectors. While market shares remain important, the Commission also considers barriers such as data advantages, network effects, switching costs, customer lock-in, intellectual property, and access to infrastructure. The authors stress that businesses should examine these factors when evaluating market position and potential exclusionary strategies.

For businesses, the practical message is to incorporate Article 102 considerations into commercial decision-making early, particularly where a strategy presents material competition-law risks. The authors recommend documenting legitimate commercial rationales and potential efficiencies, including sustainability benefits, while noting that regulatory compliance alone does not shield conduct from Article 102 scrutiny. Although the Guidelines offer a more structured framework, assessments remain fact-specific and their practical significance will continue to develop through future enforcement and litigation…

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