Article 102 prohibits abusive behaviour by companies holding a dominant position on any given market. This includes behaviour that excludes competitors from the market, known as exclusionary abuses of dominance.
In 2009, the Commission adopted Guidance on its enforcement priorities in the area of exclusionary conduct, promoting a so-called “effects based” approach to exclusionary abuses of dominance.
1. The “102 Package” of March 2023
Against the background of market developments and the evolution of the EU Court’s case law, in March 2023 the Commission amended the guidance on enforcement priorities through an Amending Communication.
In parallel with the updated Guidance on its enforcement priorities, the Commission launched the process to adopt the first Guidelines on exclusionary abuses of dominance. The guidelines will be based on the case law of the EU Courts and the Commission’s enforcement experience. They will lead to greater legal certainty and help foster consistent enforcement between the Commission, national competition authorities and national courts.
As part of this process, the Commission also issued a Call for Evidence seeking feedback on the adoption of Guidelines on exclusionary abuses of dominance. The responses to the Call for Evidence can be found on the relevant Better Regulation webpage. Additionally, stakeholders submitted position papers, which can be accessed here.
More information on the background and rationale behind the initiative of the Guidelines, as well as the updates to the 2009 Guidance, can be found in the DG COMP Staff Policy Brief titled A dynamic and workable effects-based approach to Article 102 TFEU.
2. The draft Guidelines and the results of the public consultation
Building also on the feedback received during the Call for Evidence, the Commission published on 1 August 2024 a draft of the Guidelines on exclusionary abuses and launched a public consultation to gather comments on the draft. The consultation was closed on 31 October 2024. The responses to the public consultation can be found here.
3. Stakeholder workshop
On 13 February 2025, the Commission hosted an interactive stakeholder workshop to gather views on different key aspects of the draft Guidelines and discuss the practical implications of their application. More information on the workshop programme can be found here.
4. The way ahead
The Commission currently plans to finalise the process for the adoption of the guidelines in the course of 2025. Upon the adoption of the Guidelines, the Commission will withdraw the 2009 Guidance on enforcement priorities.
Relevant documents
2009 Guidance on enforcement priorities:
- Communication from the Commission: Guidance on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings.
Official Journal C 45, 24.2.2009, p. 7–20 - Communication from the Commission: Amendments to the Communication from the Commission - Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings ("Amending Communication”) and Annex to the Amending Communication
Official Journal C/2023 116/01 - Compare version of Guidance on enforcement priorities in applying Article 82 TFEU, showing the amendments implemented by the Amending Communication
The initiative on the Guidelines on exclusionary abuses of dominance:
- The Call for evidence
- Policy Brief “A dynamic and workable effects-based approach to Article 102 TFEU”
- The draft Guidelines on exclusionary abuses and the replies to the public consultation