22OCT

Brussels writes its first abuse rulebook

3 min read

19:10UTC

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.

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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.

Source Landscape

This story draws on neutral-leaning sources from Belgium

Belgium×2

Primary parallel: The instrument being withdrawn, the 2009 Guidance Paper on enforcement priorities, itself followed a multi-year process; competition doctrine in Brussels typically revises on a decade-plus cycle rather than an annual one.

Counter-parallel: The Digital Markets Act, proposed in December 2020 and fully applicable by May 2023, shows the same institution can legislate in under three years when political will treats a gap as urgent. Article 102 guidance revision, opened with a March 2023 call for evidence, was not given that urgency.

Consensus view: the Commission's adopted text, at paragraph 24, sets a 40% market-share threshold, but only as a rebuttable floor: dominance 'can still be found' below it wherever customers are generally dependent on the undertaking or competitors face serious capacity limits.

Counter-view: Relative to its own 2023 draft, the adopted guidelines narrow the list of conduct presumed to produce exclusionary effects, a change that will read, to platform defence counsel, as ceding ground even as the withdrawal of the 2009 Guidance Paper removes the instrument dominant firms had used for seventeen years to predict Commission behaviour.

Key tension: Whether a narrower presumption list offsets the loss of a long-standing predictability instrument for firms assessing their own exposure under Article 102.

Sources:European Commission·European Commission

Mentions:European Commission →EU Article 102 →Digital Markets Act →Meta →Google →WhatsApp →Official Journal →Treaty on the Functioning of the European Union →Brussels →Android →European Union →

First Reported In

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

European Commission· 8 Sept 2026

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Causes and effects

Caused by

Brussels used antitrust to reopen WhatsApp

The Meta WhatsApp Article 102 order is a precedent case the new Guidelines will now be tested against.

Occurred 9 Jun 2026

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Google loses €4.1bn EU Android appeal

The confirmed Android fine under Article 102 is a precedent case the new Guidelines will now be tested against.

Occurred 2 Jul 2026

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This Event

Brussels writes its first abuse rulebook

Complainants and dominant firms now have a written Commission test for exclusionary abuse under Article 102, where the 2009 text set out enforcement priorities rather than doctrine.

Led to

Brussels takes up the fan complaint

The new Article 102 Guidelines give a written test the already-lodged pending complaint will now be argued against.

Occurred 28 May 2026

Read story →

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