Skip to content
Welcome, thoughtbot's Giant Robots listeners!Start here
Russia-Ukraine War 2026
17OCT

Brussels writes its first abuse rulebook

3 min read
17:43UTC

The Commission adopted its first Guidelines on exclusionary abuses of dominance on 3 September, closing a process of three and a half years and withdrawing the 2009 enforcement-priorities guidance.

ConflictAssessed
Key takeaway

the Commission has published its own test for exclusionary abuse, replacing the 2009 priorities guidance.

The European Commission adopted its first Guidelines on exclusionary abuses of dominance on 3 September 2026. They sit under Article 102 of the TFEU (Treaty on the Functioning of the European Union), the general prohibition on abuse of a dominant position, and close a process of three and a half years that ran from an amending communication in March 2023, through a draft published on 1 August 2024, a consultation that closed on 31 October 2024, and a stakeholder workshop on 13 February 2025.⁠1 Paragraph 246 withdraws the 2009 Guidance on enforcement priorities, published in the Official Journal (OJ) at OJ C 45 of 24 February 2009, with effect 30 days after the new Guidelines appear there.⁠2

Paragraph 24 sets out how the Commission reads market share. A very large share held over a sustained period is, save in exceptional circumstances, evidence of dominance by itself, and the paragraph puts that in particular at 50% or more. Below that, it says dominance is generally unlikely where an undertaking holds less than 40%, while allowing that dominance can still be found there, for example where customers depend on the undertaking or competitors face serious capacity limits.⁠3

Article 102 is not the Digital Markets Act, and the distinction matters for anyone reading the two as one enforcement programme. The DMA imposes standing obligations on designated gatekeepers; Article 102 requires the Commission to prove dominance and abuse case by case. Brussels reached for the treaty article in June to order Meta to restore free WhatsApp Business application programming interface (API) access to rival AI assistants, and the Court of Justice confirmed the €4.1bn Android fine under the same article in July. Complaints already lodged and still pending will now be argued against this text.

What a complainant gains is a published test to plead against, drafted by the authority that will decide the case. What the six member states with no named AI Act authority illustrate is the other half of the picture: doctrine written at the centre, in the same fortnight the periphery has nobody appointed to apply a different instrument.

Deep Analysis

In plain English

Article 102 is the EU's general rule against companies abusing a dominant market position, separate from the newer Digital Markets Act that targets only the largest tech platforms by name. On 3 September, the European Commission published its first-ever detailed guidelines explaining how it will decide when a company's conduct crosses that line. The guidelines say a company with under 40% market share is usually not considered dominant, but can still be found dominant below that if customers depend on it or rivals cannot keep up. This general competition tool, not the Digital Markets Act, is what future antitrust cases against dominant tech companies will likely use.

Deep Analysis
Root Causes

Guidelines are soft law: they cannot override binding Court of Justice case law built up since judgments such as Hoffmann-La Roche and Intel.

DG Competition had to draft a text consistent with decades of jurisprudence, including the 2009-era doctrine it is formally withdrawing, which is the structural reason the revision took three and a half years rather than being issued as a simple update.

First Reported In

Update #15 · Mistral closes EUR 3bn; Luxembourg buys in

European Commission· 8 Sept 2026
Read original →
Different Perspectives
Bulgarian government
Bulgarian government
Bulgaria's Prime Minister, Rumen Radev, said the sinking of HS Dignity "benefits the Russian Federation" while saying Bulgaria lacked solid evidence to accuse anyone, and Defence Minister Dimitar Stoyanov asked NATO for air defence on 16 October. The request comes from a government that stopped state military aid to Ukraine in June.
Radoslaw Sikorski
Radoslaw Sikorski
Poland's foreign minister challenged Elon Musk on X after SpaceX capped Ukraine's Starshield terminals on 14 October. Poland pays about $50m a year for Ukraine's Starlink subscriptions, so Warsaw speaks as the paying customer as well as the ally.
Andy Burnham
Andy Burnham
Burnham fast-tracked £10m of a £45m air-defence missile delivery when Zelenskyy visited London on 14 October, and his ministers are lobbying allies to ban maritime services for Russian liquefied natural gas. The measure targets insurers and shipowners, many of them in London, rather than the gas itself.
Ministry of External Affairs (India)
Ministry of External Affairs (India)
India's foreign ministry said after the 16 September House vote that New Delhi would take all necessary measures to protect its trade.
European Council
European Council
EU leaders on 15-16 October rejected a US idea to hand Washington the roughly €200bn of frozen Russian assets held in Europe, and Kaja Kallas said the decision belongs to Europeans. The same summit put off a decision on financing Ukraine, saying leaders "will revert to the issue in a timely manner".
Donald Trump
Donald Trump
Trump signed the 16 October order that sets the Graham Act's duties and waives them under section 115(a), with a certification sent to Congress. He says the United States has not stopped sharing intelligence with Ukraine, and on 11 October he said both sides had agreed to halt attacks on energy infrastructure.

Written with AI from Lowdown's published reporting. Not individually reviewed by an editor. Editorial standards.