Partner London
"The final Guidelines step back from the draft’s broad reliance on presumptions and aligns the analytical framework more closely with the case law of the EU courts."
The adoption of the final text concludes a process launched in 2023 which was followed by the publication of draft Guidelines for public consultation in 2024. The draft attracted significant criticism from practitioners, academics and businesses, particularly due to its broad reliance on presumptions, its perceived departure from certain strands of EU case law and concerns that it might reduce the role traditionally played by economic analysis and effects-based assessment in Article 102 enforcement.
The final Guidelines differ substantially from the draft version. Whilst they preserve the Commission’s ambition to strengthen Article 102 enforcement, they also incorporate many of the comments received during the consultation. In particular, the final text steps back from the draft’s broad reliance on presumptions and aligns the analytical framework more closely with the case law of the EU courts. This recalibration provides a more balanced framework for enforcement and self-assessment, although some uncertainty remains where the underlying case law itself leaves room for interpretation.
Key developments
A. Assessment of dominance
One of the most notable changes introduced in the final Guidelines concerns the assessment of dominance. The final Guidelines bring back the 40% market share benchmark that had disappeared from the 2024 draft: dominance is considered generally unlikely where an undertaking’s market share is below 40%.
This threshold does not, however, constitute a true safe harbour. The Commission expressly recognises that dominance may still exist below the 40% level where other indicators point to significant market power, including customer dependence, barriers to entry and expansion, network effects, switching costs, access to data, and the strength of digital ecosystems. Nevertheless, the reinstatement of the benchmark is a welcome development from a self-assessment perspective, providing business with a degree of predictability that was largely absent from the draft Guidelines.
B. From presumptions to a more flexible analytical framework
A central change in the final Guidelines is the Commission’s recalibration of the analytical framework for assessing exclusionary conduct. Compared with the draft’s broad reliance on categories of conduct and presumptions of exclusionary effects, the final text places greater emphasis on the factual and economic context in which the conduct occurs and expressly recognises the relevance of concepts such as theory of harm, consumer welfare and the As Efficient Competitor (“AEC”) standard.
Rather than relying predominantly on formal categories of conduct, the final text places greater prominence to the mechanism through which a particular practice may harm the competitive process. The Commission must identify how the conduct under examination can produce exclusionary effects in the relevant economic context, although actual effects need not be demonstrated.
This shift does not, however, entail a departure from presumptions or differentiated evidentiary standards. Instead, the Guidelines adopt a ‘sliding scale’ approach: the more a type of conduct is generally likely to distort effective competition, the less case-specific evidence the Commission will need to establish such a distortion, and vice versa. Presumptions therefore remain relevant in certain circumstances, but no longer perform the overarching role envisaged in the draft.
The result is a framework that is more flexible and more closely aligned with case law but not necessarily more predictable in every respect. The sliding-scale approach avoids imposing the same evidentiary requirements across very different forms of conduct but inevitably leaves greater room for judgment as to how much case-specific evidence will be required in any given case. The Guidelines therefore trade some of the apparent certainty of the draft’s categorical approach for a more nuanced, but also more discretionary, assessment.
Key contacts
Of Counsel Rome
Senior Associate Rome
Associate Milan
"The Guidelines adopt a ‘sliding scale’ approach: the more a type of conduct is generally likely to distort effective competition, the less case-specific evidence the Commission will need."
C. Access restrictions and refusal to supply
One of the areas in which the final Guidelines provide particularly significant guidance concerns conduct affecting access to inputs, infrastructure, data, functionalities, interoperability information and other resources necessary for rivals to compete. The Guidelines draw a distinction between access restrictions and refusals to supply, a distinction that has become increasingly important following recent judgments of the EU courts.
The starting point remains the exceptional framework established in Bronner. Where a dominant undertaking refuses access to infrastructure that it owns and has developed for the needs of its own business, an obligation to provide access may be imposed only under stringent conditions, including that the input is indispensable and that the refusal can eliminate effective competition. These conditions reflect the need to balance effective competition against the dominant undertaking’s freedom of contract, property rights and incentives to invest. As the court has reiterated, imposing access too readily may undermine not only the dominant undertaking’s incentives to develop infrastructure, but also rivals’ incentives to develop competing assets.
Recent case law has, however, clarified the limits of this exceptional framework. In Alphabet (Android Auto) (Case C-233/23), the court held that the Bronner indispensability requirement does not apply where the infrastructure at issue was not developed solely for the dominant undertaking’s own use but was designed to be used by third parties. In those circumstances, restricting or refusing access may infringe Article 102 even where the input is not indispensable, provided that the conduct can produce exclusionary effects and is not objectively justified. Importantly, the fact that Bronner does not apply does not create an automatic obligation to provide access: the competitive effects and any legitimate technical, security or integrity considerations remain relevant to the assessment.
The distinction is therefore consequential rather than merely terminological. The Guidelines provide greater clarity as to the legal test applicable once conduct has been characterised as a refusal to supply or an access restriction, but they do not necessarily eliminate uncertainty as to that characterisation itself. Indeed, a complete refusal of access does not, by that fact alone, attract the Bronner test: much depends on the nature and purpose of the input, the circumstances in which it was developed and the degree of control exercised by the dominant undertaking.
This issue extends well beyond digital platforms. The recent judgment in Lukoil Bulgaria and Lukoil Neftohim Burgas (Case C-245/24), concerning fuel transport and storage infrastructure, further clarified the circumstances in which the Bronner framework may apply to infrastructure that was originally developed by public authorities or financed with public funds. The court held that the Bronner conditions may continue to apply where such infrastructure was subsequently transferred to, or acquired by, a dominant undertaking under genuinely competitive conditions and the undertaking enjoys full decision-making autonomy over access. Conversely, where legislation, regulation or contractual obligations materially restrict that autonomy, the rationale for the exceptional Bronner threshold no longer applies. The judgment may be particularly relevant in network industries, as well as aviation. Many airports, airport infrastructure assets and air navigation service providers have historically been state-owned and, in some jurisdictions, subsequently privatised or operated under concession or PPP structures. In those circumstances, the key questions may often be whether the undertaking enjoys sufficient autonomy over access decisions and whether the conditions of acquisition or transfer justify treating the infrastructure in a manner analogous to assets developed for the undertaking’s own business.
For businesses operating infrastructure-intensive or regulated assets, including the energy, transport and aviation sectors, this means the Article 102 analysis may increasingly turn not only on whether access has been refused or restricted, but also on the origin and purpose of the relevant asset, the conditions under which it was acquired or developed, and the nature of any regulatory or contractual access obligations attaching to it. As recent case law demonstrates, the key question is often no longer simply whether access has been denied but whether the characteristics of the relevant asset justify the application of the exceptional Bronner framework at all.
"The key question is often no longer simply whether access has been denied but whether the characteristics of the relevant asset justify the application of the exceptional Bronner framework at all."
D. A Broader Framework for Objective Justifications and Efficiency
The final Guidelines contain considerably more detailed guidance on objective justifications and efficiency defences than the 2024 draft, including on legitimate commercial and technical considerations, public-interest objectives and the evidence required to substantiate efficiency claims.
The Guidelines reaffirm that conduct may be justified where it is objectively necessary and proportionate to a legitimate aim or where any distortion of competition is counterbalanced or outweighed by efficiencies that also benefit consumers. For an efficiency defence to succeed, the dominant undertaking must, among other things, demonstrate that the efficiencies are genuine, that the conduct is necessary to achieve them, that the benefits are passed on to consumers and that effective competition is not eliminated.
Significantly, the Commission acknowledges that efficiency claims may include sustainability benefits, resilience considerations and, in certain circumstances, efficiencies arising in related markets. The practical significance of this broader recognition should not, however, be overstated. The evidentiary burden remains demanding and, for efficiencies arising outside the relevant market, the consumers negatively affected by the conduct must substantially overlap with those receiving the relevant benefits. This may materially limit the scope for relying on such efficiencies in practice, particularly in relation to broader sustainability benefits.
The detailed evidentiary requirements also make contemporaneous documentation increasingly important. Dominant undertakings seeking to rely on an objective justification or efficiency defence will be better placed to do so where the rationale for the conduct, the alternatives considered and the expected benefits have been documented when the relevant commercial decision is taken, rather than reconstructed after an investigation has begun.
Conclusion
The final Guidelines represent a significant improvement over the 2024 draft and provide further clarity to the industry. They enhance predictability in several important areas, including the assessment of dominance, the role of theories of harm and the scope of objective justifications and efficiency defences, while offering dominant undertakings a more balanced framework for assessing their conduct.
More generally, however, the Guidelines’ extensive reliance on EU courts’ case law is an inherent limit to the guidance that the Commission have provided. Where the underlying case law is settled, the Guidelines offer valuable consolidation and structure. Where it remains fragmented, evolving or open to different interpretations, the Guidelines cannot fully dispel the current uncertainty in relation to these aspects. This is evident in areas such as the distinction between access restrictions and refusals to supply, where recent case law continues to refine the scope of the Bronner framework, and in the practical application of the Guidelines’ sliding-scale approach, which necessarily leaves room for debate as to the amount of case-specific evidence required in a given case.
Much will therefore depend on how the Commission applies the flexibility built into the new framework in individual cases. In particular, the practical operation of the sliding scale and the boundaries between different categories of exclusionary conduct will ultimately determine whether the Guidelines deliver not only a more faithful account of the case law, but also the greater predictability that they seek to achieve.
Key contacts
Partner London
Of Counsel Rome
Senior Associate Rome
Associate Milan
