Sibel ÖZTÜRK, LL.M., Attorney-at-Law | Selenay ESEN, Trainee Lawyer
On 3 September 2026, the European Commission adopted its new Guidelines on the assessment of exclusionary conduct by dominant undertakings under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”). Published in the Official Journal of the European Union on 9 September 2026, the Guidelines establish an updated framework for assessing dominance, exclusionary abuses and objective justifications, drawing on the evolving case law of the EU Courts and the Commission’s decisional practice.
Article 102 TFEU prohibits the abuse of a dominant position, rather than the holding of such a position in itself. An abuse of dominance may take the form of exclusionary conduct that restricts competitors’ ability to compete, or exploitative conduct, such as excessive pricing or the imposition of unfair trading conditions. The Commission’s 2026 Guidelines focus specifically on exclusionary abuses and explain the legal and economic criteria applicable to assessing the effects of such conduct on effective competition.
1. From the 2009 Guidance to the 2026 Guidelines: An Evolving Framework of Assessment
The Commission’s Guidance on Enforcement Priorities, adopted in 2008 and published on 24 February 2009, placed particular emphasis on an effects-based approach when identifying the Commission’s enforcement priorities in relation to exclusionary abuses of dominance.
In the years that followed, judgments of the Court of Justice of the European Union, particularly in Intel, Servizio Elettrico Nazionale, Unilever Italia and Google Shopping, contributed to the development of the legal criteria governing the assessment of conduct by dominant undertakings. The Commission amended its earlier Guidance in 2023 and, following the publication of draft Guidelines for public consultation in 2024, adopted the final Guidelines in 2026.
Whereas the 2009 Guidance primarily addressed the Commission’s enforcement priorities, the new Guidelines focus on the substantive legal assessment of exclusionary abuses under Article 102 TFEU. Following their adoption, the Commission withdrew the 2009 Guidance.
Rather than departing from economic analysis, the new Guidelines systematically address the assessment methods applicable to different categories of conduct, taking account of the relevant case law of the EU Courts.
2. Assessment of Dominance and Exclusionary Effects
In assessing dominance, the Guidelines provide for consideration of market shares alongside barriers to entry and expansion, the competitive strength of rivals and countervailing buyer power.
Market shares of 50% or more maintained over a substantial period constitute a strong indication of dominance, while dominance is generally considered less likely where market shares are below 40%. Nevertheless, the significance of market shares depends on the structure of the relevant market and the prevailing conditions of competition.
In digital markets in particular, network effects, users’ dependence on specific platforms, data-related advantages and high switching costs may be relevant to the assessment of market power. By considering these factors alongside traditional indicators of market power, the Guidelines establish an analytical framework capable of accommodating different market structures.
Two principal considerations are central to the assessment of exclusionary abuses: whether the conduct falls within the scope of competition on the merits and whether it is capable of producing exclusionary effects.
Competition on the merits refers to competition based on factors such as price, quality, innovation and efficiency. The fact that competitors lose market share as a result of a dominant undertaking’s commercial success is not, in itself, sufficient to establish an abuse. By contrast, practices that restrict competitors’ access to the market or their ability to compete may warrant examination under Article 102 TFEU.
As regards exclusionary effects, it is not necessary to establish that competitors have actually exited the market. The relevant consideration is whether the conduct is capable of restricting effective competition in the prevailing market conditions. Factors such as the nature, scope and duration of the conduct, as well as the structure of the market, are relevant to this assessment.
3. Assessment Methods Applicable to Different Categories of Exclusionary Conduct
One of the notable features of the new Guidelines is their recognition of analytical frameworks tailored to different categories of exclusionary conduct, rather than the application of a single assessment methodology to all practices.
In relation to pricing practices, price-cost analyses remain relevant to the assessment of predatory pricing and margin squeeze. The as-efficient competitor (“AEC”) test, which examines whether a hypothetical competitor as efficient as the dominant undertaking could compete under the relevant pricing conditions, may be applied particularly in the assessment of such practices. However, the applicability of the test and the assessment of the available evidence depend on the specific characteristics of the conduct under examination.
Exclusive dealing arrangements and rebate schemes are addressed under distinct analytical frameworks. Exclusive dealing is subject to a rebuttable presumption that it distorts effective competition, while the assessment of evidence submitted by the dominant undertaking to rebut that presumption remains an important element of the analysis. In the case of rebates not conditional upon exclusivity, relevant considerations include the structure of the rebate scheme, the conditions under which it operates and competitors’ ability to compete.
In relation to tying and bundling, the assessment examines whether a dominant undertaking uses its position in one market in a manner capable of affecting the conditions of competition for other products or services. The distinct nature of the products concerned, the conditions under which the practice is implemented and its capacity to produce exclusionary effects are relevant to the analysis.
The Guidelines also draw an important distinction between restrictions on access and refusals to supply. In particular, the indispensability requirement applicable to certain categories of refusal to supply is distinguished from the conditions governing the assessment of other forms of access restriction. This approach allows the applicable legal analysis to reflect the specific nature of the conduct, particularly in markets where access to infrastructure, data or technical systems is important for competition.
The Guidelines further address self-preferencing practices, which are particularly relevant to digital platforms. Where a platform grants preferential treatment to its own products or services over those offered by competitors, the assessment takes account of the nature of the conduct and its effects on effective competition, particularly in light of the case law arising from Google Shopping.
The Guidelines also examine, as a separate category, certain forms of conduct which, by their very nature, have an anticompetitive object and characteristics. The legal characterisation of such conduct is therefore relevant to determining the applicable evidentiary requirements and framework of assessment.
4. Objective Justifications and the Efficiency Defence
The Guidelines also address in detail the objective justifications that undertakings may invoke in the context of an investigation into exclusionary abuses.
A dominant undertaking may seek to demonstrate that its conduct is objectively necessary and proportionate to the pursuit of a legitimate objective, or that it generates efficiencies capable of counterbalancing its adverse effects on competition.
In assessing an efficiency defence, relevant conditions include whether the claimed efficiencies are verifiable, whether consumers receive a fair share of the resulting benefits, whether the conduct is necessary to achieve those efficiencies and whether effective competition is preserved.
In addition to cost savings, benefits relating to quality, innovation, sustainability and the resilience of supply chains may also be taken into account where the applicable conditions are satisfied. In this respect, the Guidelines provide a framework that considers not only the potential adverse effects of exclusionary conduct on competition, but also the objective justifications and efficiencies advanced by the undertakings concerned.
5. Implications for Turkish Competition Law
Article 6 of Law No. 4054 on the Protection of Competition contains provisions governing the abuse of dominance that are broadly aligned with Article 102 TFEU. The Turkish Competition Authority’s 2014 Guidelines on the Assessment of Exclusionary Abusive Conduct by Dominant Undertakings also constitute an important reference in the application of Turkish competition law.
The European Commission’s 2026 Guidelines may provide a valuable basis for comparative legal analysis under Turkish competition law, particularly in relation to the assessment of exclusionary effects, analytical methods applicable to pricing and non-pricing conduct, exclusive dealing arrangements and objective justifications. At the same time, the enforcement approaches and judicial precedents of the two legal systems must be considered within their respective legal frameworks.
Conclusion
The European Commission’s 2026 Guidelines on Article 102 TFEU systematically set out the principles governing the assessment of exclusionary abuses of dominance, reflecting the evolving case law of the EU Courts and the Commission’s enforcement experience.
The clarification of conduct-specific analytical methods, the capacity to produce exclusionary effects, presumptions applicable to exclusive dealing, restrictions on access and objective justifications is particularly relevant to the assessment of commercial practices adopted by dominant undertakings.
Against this background, the new Guidelines represent an important development aimed at enhancing legal certainty and promoting consistency in the application of Article 102 TFEU. Their practical implications will continue to evolve in light of the Commission’s future decisions and the case law of the EU Courts.
Türkçe 
