Bucharest: The final adoption window for the Commission’s revised Article 102 Guidelines has narrowed to the closing weeks of the second quarter, with the Directorate-General for Competition now circulating a near-complete text to Member States ahead of an inter-service consultation that practitioners expect to land in early June. The draft, which has been in motion since the consultation phase opened in the summer of 2024, would replace the 2009 Guidance Paper on exclusionary abuses and represents the first wholesale rewrite of the Commission’s enforcement playbook on dominance in more than a decade.
National competition authorities, including Romania’s Consiliul Concurenței, have been briefed on the closing structure during the European Competition Network’s spring contact group. Officials familiar with the text describe a document that tightens the framework around naked restrictions while leaving more analytical space for effects-based scrutiny of conduct that falls outside the per se exclusionary categories. The codified treatment of self-preferencing follows directly from the Commission’s recent enforcement record in digital advertising, where a single-firm fine north of two-and-a-half billion euros was issued against a vertically integrated platform, and from the Court’s confirmation that tying conditions can constitute abuse even where downstream consumers are not directly harmed.
The draft is also expected to recalibrate the as-efficient-competitor test, an analytical tool that has been the subject of intense litigation since the Intel and Servier judgments. Sources close to the file indicate the test will remain available where price-based conduct is at issue, but the new text will clarify that it is neither indispensable nor decisive in cases concerning non-pricing practices, in particular refusals to deal and access conditions. That clarification reflects the General Court’s gradual narrowing of the test’s scope and is likely to lower the evidentiary threshold for the Commission in conduct cases against platforms and standard-essential patent holders.
Merger policy interacts with the guidelines through the doctrine of below-threshold transactions. The Commission’s note acknowledges that national authorities retain the ability to assess concentrations outside notification thresholds under Article 102, building on the Court’s Towercast ruling and on the French Autorité de la concurrence’s first sanction of such a transaction earlier this cycle. Practitioners in Bucharest, where the national authority has been preparing its own Article 102 enforcement docket on local energy distribution, see the codification as an invitation for member states to bring more ex post review cases against deals that fall short of the European or national thresholds.
Industry associations have signalled cautious support for the framework. BusinessEurope and DigitalEurope both filed responses during the consultation arguing for a clearer safe harbour for efficiency-enhancing conduct, while consumer organisations and small business groups pressed for sharper red lines on margin squeeze and predatory pricing. The final text is expected to thread these positions through new sections on objective justification and on the burden of proof, with the latter resting more decisively on the firm once the Commission has established the elements of the abuse category.
A second consultation tranche, restricted to Member States, will close at the end of the month, with college adoption pencilled for the final week of June. The guidelines will then take immediate effect and will be applied to all open proceedings, including the long-running cases on cloud services bundling and on aftermarket spare parts, where the Commission’s statement of objections has been awaited since the start of the year.
