Abuse of a Dominant Position Under Article 102 TFEU: Market Power, Exclusionary Conduct, and Exploitative Practices

Abuse of a Dominant Position Under Article 102 TFEU: Market Power, Exclusionary Conduct, and Exploitative Practices

1. Introduction: The Legal Limits of Market Power

Competition law does not require businesses to remain small, prevent successful companies from expanding, or guarantee that every competitor will survive. A business may become dominant because it offers better products, develops superior technology, operates more efficiently, or attracts customers through competitive pricing. Such success is not, in itself, unlawful.

The legal problem arises when an undertaking uses its economic power in ways that undermine the competitive process rather than competing through superior performance. A dominant company may attempt to exclude rivals, impose unfair trading conditions, restrict access to essential inputs, discriminate between commercial partners, or exploit customers who have limited alternatives.

Article 102 of the Treaty on the Functioning of the European Union (TFEU) addresses this problem. It prohibits any abuse by one or more undertakings of a dominant position within the internal market or a substantial part of it, insofar as the conduct may affect trade between Member States.

The provision is one of the two principal pillars of EU antitrust law. Article 101 addresses restrictive coordination between independent undertakings, while Article 102 addresses abusive conduct by undertakings holding a dominant position. The two provisions may sometimes apply to related conduct, but their legal requirements are distinct.

Article 102 is particularly significant in markets where economic power is concentrated. A dominant undertaking may control infrastructure, technology, distribution channels, essential inputs, or access to customers. Its decisions can therefore influence not only its own commercial relationships but also the ability of other businesses to compete.

Digital markets have made these questions increasingly complex. Network effects, access to data, platform ecosystems, switching costs, and control over important digital infrastructure can create forms of market power that are not adequately understood through market shares alone.

The European Commission adopted its first comprehensive Guidelines on exclusionary abuses of dominance on 3 September 2026. Published in the Official Journal on 9 September 2026, the Guidelines provide a consolidated framework for assessing exclusionary conduct under Article 102, drawing on the case law of the EU Courts and the Commission’s enforcement experience. They replaced the Commission’s earlier 2009 Guidance on enforcement priorities in this area.

The legal framework therefore combines the Treaty provision, extensive judicial interpretation, Commission enforcement practice, and the newly adopted Guidelines. Understanding these elements is essential to distinguishing legitimate commercial success from the unlawful exploitation of market power.

2. The Legal Foundations of Article 102 TFEU

Article 102 provides:

“Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.”

The provision identifies four principal elements:

1. The conduct must be attributable to one or more undertakings.
2. The undertaking or undertakings must hold a dominant position in the relevant market.
3. The conduct must constitute an abuse of that position.
4. The conduct must be capable of affecting trade between Member States.

Unlike Article 101, Article 102 does not require an agreement or concerted practice. A dominant undertaking may infringe the provision through unilateral conduct, including its pricing decisions, contractual policies, distribution arrangements, or refusal to provide access to certain facilities.

The reference to “one or more undertakings” also allows the provision to address collective dominance, where two or more undertakings jointly occupy a dominant position and engage in abusive conduct.

Article 102 contains a non-exhaustive list of examples of abuse:

• Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.
• Limiting production, markets, or technical development to the prejudice of consumers.
• Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
• Making the conclusion of contracts subject to acceptance of supplementary obligations that have no connection with the subject of those contracts.

The words “in particular” are important. The list does not exhaust the possible forms of abusive conduct. The Court of Justice has repeatedly confirmed that Article 102 can apply to practices beyond those expressly identified in the Treaty.

In Europemballage and Continental Can v Commission, Case 6/72, the Court recognised the non-exhaustive character of the examples in the provision. Its interpretation allows competition law to respond to new commercial practices without requiring a Treaty amendment every time market structures change.

The official text of Article 102 TFEU remains the starting point for any legal assessment.

3. The Concept of an Undertaking

Article 102 applies to undertakings, a concept that has the same functional meaning used in Article 101.

An undertaking is any entity engaged in economic activity, irrespective of its legal form or the way in which it is financed. Companies, partnerships, public enterprises, associations, and other organisations may therefore fall within the provision when they offer goods or services on a market.

The distinction is based on the nature of the activity rather than the entity’s formal status. Public ownership does not automatically exclude an organisation from competition law. A public enterprise conducting commercial activities may be subject to Article 102 in the same way as a privately owned company.

In MOTOE, Case C-49/07, the Court examined an organisation involved in the organisation and authorisation of motorcycle events. It confirmed the importance of examining whether an entity performs economic activities when determining whether it qualifies as an undertaking.

The concept also has consequences for corporate groups. Several legally separate companies may form a single economic unit where one exercises decisive influence over another. In appropriate circumstances, the parent company may therefore be held responsible for conduct carried out by a subsidiary.

This prevents undertakings from avoiding competition-law responsibility simply by distributing commercial activities among several corporate entities.

4. Defining the Relevant Market

The identification of dominance requires an understanding of the market in which the undertaking operates. A company cannot be assessed in isolation from the products, services, competitors, and geographical area that constrain its commercial behaviour.

Market definition is therefore a central analytical step in Article 102 investigations.

4.1 The relevant product market

The relevant product market generally includes products or services that customers regard as interchangeable or substitutable because of their characteristics, prices, and intended use.

The assessment considers demand-side substitutability: whether customers would switch to alternative products if the price of the product concerned increased or its quality deteriorated.

Supply-side substitutability may also be relevant where other suppliers can readily redirect production to provide competing products within a sufficiently short period and without significant additional costs or risks.

The analysis must reflect actual competitive conditions rather than superficial similarities between products.

For example, two digital services may appear similar but operate in distinct markets if users do not regard them as practical substitutes. Conversely, products with different technical characteristics may belong to the same market if customers can readily switch between them.

4.2 The relevant geographic market

The relevant geographic market is the area in which the conditions of competition are sufficiently homogeneous.

It may be national, regional, European, or wider. The geographical scope depends on factors such as customer preferences, transport costs, regulatory barriers, distribution networks, language, and the availability of competing suppliers.

A market may be geographically limited even where the undertaking operates internationally. For example, regulatory requirements or national distribution systems may create distinct competitive conditions in particular Member States.

4.3 Market definition in digital and rapidly developing markets

Traditional market definition methods remain relevant, but digital markets may require a broader examination of competitive constraints.

Services offered at zero monetary prices may still compete through quality, privacy, functionality, advertising conditions, or the collection and use of personal data.

Multi-sided platforms create additional complexity because they connect different groups of users. A platform may provide services to consumers while generating revenue from advertisers or business users. The competitive relationship between these sides must be considered when defining the relevant market.

Network effects may strengthen a platform’s position. The value of a service to one group of users may increase as participation by another group expands. This can make entry more difficult and reinforce the position of an established operator.

The Commission’s 2024 Notice on the definition of the relevant market addresses developments including digitalisation, globalisation, innovation, and multi-sided markets.

Market definition is an analytical instrument, not an end in itself. Its purpose is to identify the competitive constraints that matter when assessing whether an undertaking can act independently of those constraints.

5. Establishing a Dominant Position

5.1 The meaning of dominance

The Court of Justice developed the foundational definition of dominance in United Brands v Commission, Case 27/76.

A dominant position is a position of economic strength that enables an undertaking to prevent effective competition from being maintained on the relevant market by giving it the power to behave, to an appreciable extent, independently of its competitors, customers, and ultimately consumers.

The concept does not require complete control of a market. A dominant undertaking may face competitors and still possess sufficient economic power to act independently of them.

Dominance is therefore a question of economic reality. It is assessed through a combination of market position, competitive constraints, entry conditions, customer power, and other structural factors.

5.2 Market shares

Market shares are an important initial indicator of dominance.

A high and persistent market share may suggest that an undertaking has a strong competitive position. However, market share alone does not automatically establish dominance.

The Commission examines the undertaking’s position relative to competitors, the stability of market shares over time, and the conditions under which competitors can expand or enter the market.

A company with a large market share in a market protected by significant barriers to entry may be more difficult to challenge than a company with the same share in a rapidly changing market where customers can easily switch suppliers.

The Commission’s investigative guidance indicates that dominance is generally unlikely where an undertaking’s market share is below 40%, although this is not an absolute legal threshold. The assessment remains dependent on the circumstances of the particular market.

5.3 Barriers to entry and expansion

Barriers to entry are conditions that make it difficult for new businesses to enter a market or for existing competitors to expand.

They may include:

• High initial investment requirements.
• Control over essential infrastructure or technology.
• Intellectual property rights and access to specialised knowledge.
• Economies of scale and scope.
• Strong network effects.
• Regulatory restrictions and licensing requirements.
• Established brand recognition and customer loyalty.
• Long-term exclusive contracts.
• Access to data or distribution channels.

The significance of these barriers depends on whether they create durable advantages for the undertaking concerned.

A dominant position may be strengthened where competitors cannot realistically challenge the undertaking within a reasonable period, even if they are commercially capable of entering the market in theory.

5.4 Countervailing buyer power

The existence of powerful customers may limit the ability of a supplier to act independently.

Large retailers, industrial purchasers, public authorities, or major commercial clients may be able to negotiate favourable conditions, switch suppliers, or sponsor alternative sources of supply.

However, buyer power must be effective rather than merely theoretical. The fact that some customers are large does not necessarily protect smaller customers or the market as a whole from the exercise of market power.

5.5 Collective dominance

Article 102 refers to abuse by “one or more undertakings”. It can therefore apply where several undertakings collectively hold a dominant position.

Collective dominance may arise where businesses are connected through structural, contractual, or other links that enable them to act together in the market.

It may also arise in oligopolistic markets where market conditions allow undertakings to adopt a common policy and behave to an appreciable extent independently of competitors, customers, and consumers.

The assessment requires more than identifying a small number of large competitors. It must establish the conditions that make collective market power sustainable, including the ability to monitor coordination, respond to deviations, and withstand competitive pressure from outside the group.

6. Dominance Is Not Itself Unlawful

One of the most important principles of Article 102 is that acquiring or holding a dominant position is not prohibited.

A business may become dominant through innovation, efficiency, investment, superior products, or successful commercial strategy. Competition law does not seek to protect competitors from the consequences of legitimate competition.

The prohibition concerns abuse, not success.

In Hoffmann-La Roche v Commission, Case 85/76, the Court established the concept of a special responsibility borne by dominant undertakings not to allow their conduct to impair genuine, undistorted competition in the internal market.

This responsibility does not mean that dominant businesses must avoid competing aggressively. They may reduce prices, improve quality, develop new products, and seek to attract customers.

The central distinction is between competition on the merits and conduct that uses methods inconsistent with normal competitive rivalry to restrict the competitive process.

In Intel v Commission, Case C-413/14 P, the Court examined the treatment of exclusivity rebates and the relevance of evidence concerning their capacity to produce exclusionary effects. The judgment is important because it confirms that the economic and factual context must be considered when assessing the conduct in question.

The later judgment in Google and Alphabet v Commission, Case C-48/22 P, delivered on 10 September 2024, reaffirmed that Article 102 does not punish dominance itself and does not guarantee the survival of less efficient competitors. It protects competition against conduct that departs from competition on the merits and is capable of restricting effective competition.

7. Exclusionary Abuses: Conduct That Restricts Competitors

Exclusionary abuse occurs where a dominant undertaking uses methods other than competition on the merits to hinder the ability of actual or potential competitors to compete effectively.

The harm may occur in the market where the undertaking is dominant or in a related or neighbouring market.

It is not always necessary to prove that competitors have actually left the market. Conduct may be abusive where it is capable of producing exclusionary effects, provided the relevant legal requirements are established.

The 2026 Commission Guidelines provide a structured approach to assessing such conduct. They emphasise the importance of examining the nature of the practice, the market context, its capability to restrict effective competition, and any objective justification.

7.1 Predatory pricing

Predatory pricing occurs when a dominant undertaking sets prices at a level designed to exclude competitors or prevent their expansion, potentially allowing it to exploit reduced competitive pressure later.

Low prices are normally beneficial to consumers. A dominant company should not be prevented from competing through efficiency, innovation, or lower costs.

The legal concern arises where pricing becomes a strategy of exclusion rather than legitimate competition.

In AKZO Chemie v Commission, Case C-62/86, the Court established important principles for assessing predatory pricing. Prices below average variable cost are generally regarded as abusive because a dominant undertaking cannot ordinarily justify them through normal commercial competition. Prices below average total cost but above average variable cost may also be abusive where they form part of a plan to eliminate competitors.

The assessment is not simply a mathematical exercise. The market context, the undertaking’s strategy, and the likely exclusionary consequences must be examined.

7.2 Loyalty and exclusivity rebates

A dominant undertaking may offer customers rebates or discounts linked to purchasing all or a substantial proportion of their requirements from that undertaking.

Such arrangements may make it commercially unattractive for customers to purchase from competitors, even where those competitors offer lower prices or better conditions.

Not every rebate is unlawful. Discounts based on genuine cost savings, volume efficiencies, or other objective commercial considerations may be legitimate.

The concern arises where the structure or operation of a rebate system is capable of restricting customers’ ability to obtain supplies from competitors.

In Hoffmann-La Roche, the Court examined fidelity rebates and their capacity to reinforce a dominant undertaking’s market position by tying customers to exclusive or near-exclusive purchasing arrangements.

The later case law requires careful attention to economic context and the potential effects of the conduct. In Intel, the Court explained the importance of examining evidence submitted by the dominant undertaking where it challenges the Commission’s assessment of the ability of the rebates to restrict competition.

7.3 Refusal to supply

A dominant undertaking may control an input, infrastructure, or service that competitors need to operate in a related market.

A refusal to supply may become abusive where it prevents effective competition and cannot be objectively justified.

However, Article 102 does not create a general obligation for dominant companies to supply every customer or share every commercial asset with competitors.

The Court has adopted a cautious approach because imposing a duty to deal may interfere with freedom of contract, investment incentives, and the ability of businesses to develop their own products and infrastructure.

In Bronner, Case C-7/97, the Court established demanding conditions for treating refusal to provide access to infrastructure as abusive. Among the relevant considerations are whether access is indispensable for competing in the downstream market, whether refusal is capable of eliminating effective competition, and whether it lacks objective justification.

The requirement of indispensability is particularly important. The mere fact that access to a dominant undertaking’s facility would make competition easier or more profitable is not enough.

7.4 Margin squeeze

A margin squeeze may arise where a vertically integrated dominant undertaking controls an upstream input and also competes with its customers in a downstream market.

It may set the wholesale price charged to downstream competitors so high, or the retail price charged to final customers so low, that competitors cannot operate profitably.

The resulting margin may be insufficient to allow an equally efficient competitor to compete effectively.

In Deutsche Telekom v Commission, Case C-280/08 P, and TeliaSonera Sverige, Case C-52/09, the Court examined margin squeeze under Article 102.

The analysis focuses on the relationship between upstream and downstream prices and the ability of competitors to compete under the conditions created by the dominant undertaking.

The existence of regulatory oversight or price controls does not necessarily remove the possibility of an Article 102 infringement.

7.5 Tying and bundling

Tying occurs where a dominant undertaking makes the purchase of one product conditional on purchasing another product.

Bundling involves offering products together, sometimes at a combined price or under conditions that make separate purchase commercially unattractive.

These practices may be legitimate where they improve functionality, reduce costs, or provide genuine consumer benefits.

However, tying and bundling may become abusive where they use dominance in one market to restrict competition in another.

In Microsoft v Commission, Case T-201/04, the General Court upheld the Commission’s finding that Microsoft had abused its dominant position through conduct involving the tying of Windows Media Player to the Windows operating system and its refusal to provide certain interoperability information.

The case illustrates how control over a widely used technological platform may allow a dominant undertaking to influence competition in related markets.

7.6 Discriminatory conduct

Article 102(c) expressly identifies the application of dissimilar conditions to equivalent transactions with other trading parties where this places them at a competitive disadvantage.

Discrimination may involve different prices, access conditions, delivery terms, technical requirements, or commercial benefits.

However, not every difference in treatment constitutes an abuse. Differences may be objectively justified by cost variations, risks, contractual circumstances, or other legitimate considerations.

The analysis must determine whether the transactions are genuinely equivalent, whether the conditions differ, and whether the treatment creates a competitive disadvantage.

7.7 Strategic litigation and other exclusionary practices

A dominant undertaking may also use legal, regulatory, or administrative procedures in ways that are capable of excluding competitors.

The use of litigation is ordinarily a legitimate means of protecting legal rights. However, exceptional circumstances may arise where legal proceedings are used as part of an exclusionary strategy rather than to secure genuine legal protection.

In ITP v Commission, commonly known as Tetra Pak II, the Court examined abusive conduct involving several related markets and recognised that Article 102 may apply to conduct in a market connected to the one in which the undertaking holds dominance, subject to the required competitive relationship.

The general principle is that the assessment cannot be confined mechanically to the precise market in which dominance has been established. The effects of the conduct on related markets may also be relevant.

8. Exploitative Abuses: Taking Unfair Advantage of Market Power

Exclusionary abuses primarily concern conduct that weakens competitors or restricts their ability to compete. Exploitative abuses concern the direct use of market power to impose unfair conditions on customers, suppliers, or other trading partners.

Article 102(a) expressly prohibits directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.

Exploitative abuses are sometimes more difficult to assess because competition authorities must distinguish genuinely unfair conditions from commercial terms that reflect legitimate differences in value, risk, investment, or market circumstances.

8.1 Excessive pricing

A dominant undertaking may charge prices that are excessive in relation to the economic value of the goods or services supplied.

The leading authority is United Brands v Commission, Case 27/76. The Court explained that a price may be excessive where it bears no reasonable relationship to the economic value of the product or service supplied.

The Court identified a two-stage analytical approach:

1. Determine whether the difference between the costs actually incurred and the price actually charged is excessive.
2. If so, examine whether the price is unfair in itself or when compared with competing products.

The assessment may involve comparisons with prices in other geographical markets, historical prices, competing products, or other appropriate benchmarks.

In AKKA/LAA, Case C-177/16, the Court confirmed that comparisons between prices in different Member States may be relevant when assessing whether charges imposed by a dominant undertaking are excessive. Such comparisons must be made on a consistent basis, taking account of relevant economic and market differences.

Excessive pricing cases require particular care. A high price may reflect innovation, investment risk, scarcity, product quality, or other legitimate commercial factors. Competition law does not impose general price controls on successful businesses.

8.2 Unfair trading conditions

Article 102(a) extends beyond prices. A dominant undertaking may impose unfair contractual conditions on customers or suppliers who have little realistic ability to negotiate or switch to alternatives.

Examples may include disproportionate contractual penalties, unreasonable restrictions, or terms that transfer excessive commercial risks to dependent trading partners.

The assessment must establish that the conditions are genuinely unfair in the context of the relevant market and the undertaking’s dominant position.

8.3 Limiting production, markets, or technical development

Article 102(b) addresses conduct that limits production, markets, or technical development to the prejudice of consumers.

A dominant undertaking may restrict output to maintain high prices, delay innovation, limit access to improved technologies, or prevent the development of products that could challenge its existing market position.

The provision recognises that competition is not limited to immediate price rivalry. Consumers may also be harmed when a dominant undertaking restricts innovation, product quality, availability, or technological progress.

9. Objective Justification and the Protection of Legitimate Commercial Conduct

Dominant undertakings are not prohibited from defending their commercial interests.

Conduct that appears restrictive may sometimes be justified by legitimate business requirements, including safety, product quality, efficiency, protection of intellectual property, or the prevention of genuine commercial risks.

The existence of a justification must be examined objectively and in the context of the conduct concerned.

A dominant undertaking may argue that the conduct is necessary to achieve a legitimate objective or produces efficiencies that outweigh its restrictive consequences.

However, the justification must be supported by evidence. A general assertion that the conduct improves profitability or strengthens the undertaking’s market position is not sufficient.

The analysis commonly considers whether:

• The claimed objective is legitimate.
• The conduct is suitable for achieving that objective.
• The restriction is necessary and proportionate.
• Less restrictive alternatives are realistically available.
• The claimed benefits outweigh the competitive harm, where the applicable legal test requires such an assessment.

The 2026 Guidelines provide a consolidated framework for considering objective justification and the assessment of exclusionary effects. They should be read alongside the relevant judgments of the Court of Justice, which remain authoritative.

10. The Special Responsibility of Dominant Undertakings

The special responsibility principle is one of the defining characteristics of Article 102.

A dominant undertaking is not required to refrain from all conduct that disadvantages competitors. It is, however, expected to exercise its commercial freedom without impairing genuine and undistorted competition through methods that depart from competition on the merits.

The principle reflects the economic power of dominant businesses. Conduct that would have limited consequences if undertaken by a small market participant may have substantial exclusionary effects when adopted by an undertaking controlling an essential input, distribution network, or major customer base.

The special responsibility must nevertheless be applied consistently with the legal requirement to establish abuse. Dominance alone does not create a general duty to assist competitors, maintain their profitability, or preserve existing market structures.

The law protects the competitive process, not individual competitors from ordinary commercial failure.

11. Article 102 in Digital Markets

Digital markets present distinctive competition-law challenges.

Platforms may operate as intermediaries between businesses and consumers, control access to important digital services, or benefit from large quantities of data and strong network effects.

Their market position may be reinforced by:

• Network effects and user concentration.
• High switching costs.
• Limited interoperability.
• Access to large datasets.
• Control over app stores or operating systems.
• Integration of several services into one ecosystem.
• Preferential treatment of the platform’s own products.
• Restrictions on business users’ access to customers.

11.1 Self-preferencing

Self-preferencing occurs where a platform gives preferential treatment to its own products or services compared with competing third-party offerings.

The conduct may involve ranking, display, access to data, technical integration, or other platform features.

The legal assessment depends on the platform’s market position, the nature of the preferential treatment, the competitive context, and its capacity to restrict competition.

In Google and Alphabet v Commission, Case C-48/22 P, concerning Google Shopping, the Court of Justice upheld the central finding that Google’s treatment of its own comparison-shopping service could constitute an abuse of dominance.

The judgment is significant because it addresses the competitive effects of platform design and preferential positioning in digital markets.

11.2 Data and access advantages

Control over data may contribute to market power where access to particular datasets gives an undertaking a significant competitive advantage.

However, possession of large quantities of data does not automatically establish dominance or abuse. The relevant questions include whether the data is commercially important, whether competitors can obtain substitutes, and whether the undertaking’s conduct restricts effective competition.

Refusals to provide access to data, discriminatory access conditions, or restrictions on interoperability may raise Article 102 concerns where the applicable legal requirements are satisfied.

11.3 The Digital Markets Act

Regulation (EU) 2022/1925, known as the Digital Markets Act (DMA), establishes a regulatory framework for designated gatekeepers providing core platform services.

Unlike Article 102, which requires an individual assessment of dominance and abuse, the DMA imposes specified obligations on undertakings designated as gatekeepers where the statutory criteria are met.

The two frameworks are complementary but distinct.

Article 102 remains applicable to abusive conduct by dominant undertakings, including conduct that may also fall within the DMA’s regulatory concerns. The DMA does not replace the Treaty competition rules, and compliance with one framework does not automatically establish compliance with the other.

The DMA’s approach reflects the recognition that certain digital markets may require obligations designed to address persistent gatekeeper conduct without waiting for a complete individual antitrust investigation in every instance.

The official legislation is available in Regulation (EU) 2022/1925.

12. The 2026 Commission Guidelines on Exclusionary Abuses

An important recent development in the interpretation of Article 102 is the Commission’s adoption of its first comprehensive Guidelines on exclusionary abuses.

The Guidelines were adopted on 3 September 2026 and published as Commission Communication C/2026/4675 in the Official Journal on 9 September 2026.

They consolidate principles drawn from the case law of the EU Courts and the Commission’s enforcement experience. Their purpose is to improve legal certainty and promote consistent application by the Commission, national competition authorities, and national courts.

The Guidelines address several important areas:

• The assessment of single and collective dominance.
• Market position and the competitive constraints facing an undertaking.
• Barriers to entry and expansion.
• Countervailing buyer power.
• Conduct departing from competition on the merits.
• The capability of conduct to produce exclusionary effects.
• Pricing and non-pricing practices.
• Objective justification and efficiencies.
• Specific categories of exclusionary conduct.

An important feature is their treatment of exclusionary effects. The assessment is not confined to whether competitors have actually been eliminated. Conduct may be relevant where it is capable of marginalising competitors, increasing entry barriers, restricting market access, or reducing the ability of competing undertakings to exert a meaningful competitive constraint.

The Guidelines also recognise that the assessment may require different analytical methods depending on the practice under examination. A pricing practice, a refusal to supply, and a platform’s discriminatory treatment of competitors cannot necessarily be evaluated through an identical economic test.

The Guidelines are a Commission communication, not a Treaty amendment or legislative regulation. They cannot override the interpretation of Article 102 given by the EU Courts. Their importance lies in organising and explaining the Commission’s approach in light of the existing legal framework.

The full text is available in the Official Journal of the European Union.

13. Enforcement of Article 102 TFEU

Article 102 is enforced through the decentralised competition-law system established by Regulation (EC) No 1/2003.

The European Commission, national competition authorities, and national courts all have roles in applying the provision.

13.1 European Commission investigations

The Commission may initiate an investigation following a complaint, information received from market participants, or its own initiative.

It may examine market structures, contractual arrangements, pricing policies, commercial correspondence, and other evidence relevant to the suspected abuse.

Under Regulation 1/2003, the Commission may request information, conduct inspections, and adopt decisions requiring undertakings to end infringements.

The investigation normally involves an assessment of the relevant market, the undertaking’s market position, the conduct under examination, and its actual or potential competitive effects.

13.2 National competition authorities

National competition authorities may apply Article 102 where the conduct falls within their competence and may affect trade between Member States.

They cooperate with the Commission through the European Competition Network, which facilitates information exchange and coordination in the enforcement of EU competition law.

Directive (EU) 2019/1, the ECN+ Directive, strengthened the powers and independence of national competition authorities to improve enforcement throughout the Union.

13.3 Commitments and interim measures

The Commission may accept commitments offered by an undertaking under Article 9 of Regulation 1/2003.

Commitments are designed to address the Commission’s concerns without necessarily requiring a formal finding of infringement. Once made binding, they can be enforced through the applicable procedural mechanisms.

Under Article 8, the Commission may also adopt interim measures where there is urgency due to the risk of serious and irreparable damage to competition and the statutory conditions are met.

13.4 Fines and remedies

Under Article 23(2) of Regulation 1/2003, the Commission may impose fines of up to 10% of the undertaking’s total turnover in the preceding business year.

The amount depends on factors including the gravity and duration of the infringement, the value of relevant sales where appropriate, and aggravating or mitigating circumstances.

The Commission may also require an undertaking to bring the infringement to an end and impose behavioural or, where necessary and proportionate, structural remedies under Article 7.

Behavioural remedies may require changes to contractual terms, pricing arrangements, access conditions, or commercial practices.

Structural remedies may involve changes to the undertaking’s organisation or assets where behavioural remedies would be ineffective or more burdensome.

14. Judicial Review and Private Enforcement

Commission decisions applying Article 102 are subject to judicial review by the EU Courts.

Under Article 263 TFEU, an undertaking may challenge the legality of a Commission decision before the General Court. Appeals on points of law may be brought before the Court of Justice.

The EU Courts may examine whether the Commission correctly interpreted Article 102, established dominance, assessed the conduct, respected procedural rights, and applied the appropriate legal and economic standards.

Article 261 TFEU, together with Regulation 1/2003, gives the EU Courts unlimited jurisdiction over fines. This enables them to cancel, reduce, or increase a financial penalty within the applicable legal framework.

National courts also apply Article 102 in commercial disputes. They may examine whether contractual terms are unlawful, whether a dominant undertaking has imposed abusive conditions, or whether a claimant has suffered harm as a result of an infringement.

Individuals and businesses may bring damages claims under the principles of EU law and the relevant national procedural framework. Directive 2014/104/EU harmonises important aspects of damages actions for infringements of competition law, including rules on disclosure, limitation periods, and the effect of infringement decisions.

Private enforcement is particularly significant in Article 102 cases because abusive conduct may affect customers, suppliers, competitors, and business partners in different ways.

15. The Relationship Between Article 101 and Article 102 TFEU

Articles 101 and 102 form the central framework of EU antitrust law, but they address different legal problems.

Article 101 prohibits agreements and concerted practices that restrict competition. Its focus is coordination between undertakings.

Article 102 prohibits the abuse of a dominant position. Its focus is the conduct of an undertaking or undertakings possessing substantial market power.

An agreement involving a dominant undertaking may fall within both provisions where the relevant conditions are satisfied. For example, an exclusive purchasing arrangement may raise questions under Article 101 if it forms part of a restrictive agreement and under Article 102 if it constitutes abusive conduct by a dominant supplier.

However, the existence of dominance does not automatically establish an infringement of Article 101, and an agreement that infringes Article 101 does not necessarily establish dominance under Article 102.

The provisions must therefore be analysed separately, even where they concern the same commercial relationship.

16. Practical Compliance and Risk Management

Businesses holding significant market positions should assess their commercial conduct carefully, particularly where their decisions may affect access to markets, infrastructure, distribution channels, or essential inputs.

Competition-law compliance should not be limited to reviewing formal contracts. It should also examine pricing strategies, rebate systems, customer allocation, technical access conditions, platform design, and relationships with suppliers and distributors.

Dominant undertakings should pay particular attention to:

• Pricing policies and discounts that may exclude competitors.
• Exclusivity obligations and loyalty arrangements.
• Refusals to supply or provide access to infrastructure.
• Discriminatory treatment of equivalent trading partners.
• Bundling and tying arrangements.
• Access to data and interoperability.
• Contractual conditions imposed on dependent customers or suppliers.
• Changes to distribution systems that may restrict market access.

Businesses should document legitimate commercial reasons for their decisions and assess whether less restrictive alternatives are available.

Internal competition-law training is especially important for employees responsible for pricing, procurement, sales, platform management, and commercial negotiations.

A compliance programme cannot guarantee that conduct will be lawful, but it can help identify potential infringements before they develop into more serious problems.

17. Key Takeaways

• Article 102 TFEU prohibits the abuse of a dominant position within the internal market or a substantial part of it where the conduct may affect trade between Member States.
• Dominance itself is not unlawful. The prohibition concerns abusive conduct, not the commercial success of an undertaking.
• Dominance is assessed through market shares, barriers to entry, competitive constraints, buyer power, and other economic factors.
• Relevant market definition is essential to assessing dominance and may involve product, geographic, and technological considerations.
• Exclusionary abuses restrict competitors’ ability to compete effectively and may include predatory pricing, exclusivity rebates, refusal to supply, margin squeeze, tying, and discriminatory conduct.
• Exploitative abuses involve unfair prices or trading conditions imposed through the exercise of market power.
• The special responsibility of dominant undertakings requires them not to impair genuine competition through methods that depart from competition on the merits.
• Objective justification and legitimate efficiencies may be relevant, but must be supported by evidence and assessed under the applicable legal standards.
• The Digital Markets Act complements Article 102 by imposing specific obligations on designated gatekeepers.
• The Commission adopted its first comprehensive Guidelines on exclusionary abuses on 3 September 2026, published in the Official Journal on 9 September 2026.
• Enforcement may result in fines of up to 10% of the undertaking’s total turnover in the preceding business year, behavioural or structural remedies, and private damages claims.

18. Frequently Asked Questions

1. What is abuse of a dominant position under Article 102 TFEU?

It is conduct by an undertaking holding a dominant position that uses methods inconsistent with competition on the merits and falls within the prohibition of Article 102. The conduct must be capable of affecting trade between Member States and satisfy the relevant legal requirements for abuse.

2. Is it illegal for a company to be dominant?

No. A company may lawfully acquire a dominant position through innovation, investment, efficiency, or superior products. Article 102 prohibits the abuse of dominance, not dominance itself.

3. What is the difference between dominance and monopoly?

Dominance is a concept of economic power that does not require the complete absence of competitors. A monopoly generally describes a market in which one supplier is the sole or overwhelmingly exclusive provider. A business may be dominant even where several competitors remain active.

4. How is dominance established?

The assessment normally begins with defining the relevant product and geographic markets. Authorities then examine market shares, barriers to entry, competitors’ positions, buyer power, and the undertaking’s ability to act independently of competitive constraints.

5. What are the main examples of abusive conduct?

Examples include predatory pricing, exclusionary rebates, refusal to supply, margin squeeze, tying, discriminatory conditions, excessive pricing, and restrictions on production or technical development.

6. What is predatory pricing?

Predatory pricing involves pricing practices by a dominant undertaking that are capable of excluding competitors through prices set at uneconomic or otherwise abusive levels. The assessment considers the applicable cost benchmarks, market conditions, and the conduct’s exclusionary capacity.

7. Can charging excessive prices violate Article 102?

Yes. Excessive pricing may constitute an exploitative abuse where the price bears no reasonable relationship to the economic value of the product or service. The principles established in United Brands are central to this assessment.

8. What is the special responsibility of a dominant undertaking?

It is the responsibility not to impair genuine and undistorted competition through conduct that departs from competition on the merits. It does not prevent a dominant business from competing aggressively or improving its products and services.

9. Can a dominant company refuse to supply a competitor?

Sometimes. A dominant undertaking is not automatically required to supply competitors or provide access to its facilities. A refusal may become abusive in exceptional circumstances, particularly where access is indispensable and the refusal is capable of eliminating effective competition, subject to the applicable legal test.

10. What is the difference between exclusionary and exploitative abuse?

Exclusionary abuse concerns conduct that restricts competitors’ ability to compete effectively. Exploitative abuse concerns the direct imposition of unfair prices or trading conditions on customers or other commercial partners.

11. Does Article 102 apply to digital platforms?

Yes. Digital platforms may be subject to Article 102 where they hold a dominant position and engage in abusive conduct. The Digital Markets Act provides an additional regulatory framework for designated gatekeepers.

12. What penalties can a company face for abusing a dominant position?

The Commission may impose fines of up to 10% of the undertaking’s total turnover in the preceding business year. It may also require the undertaking to end the infringement and impose behavioural or structural remedies where legally justified.

13. Can customers or competitors claim damages?

Yes. Businesses and individuals that suffer harm as a result of an infringement of Article 102 may seek compensation through national courts, subject to the applicable EU and national rules.

14. What are the 2026 Article 102 Guidelines?

They are the European Commission’s first comprehensive Guidelines on exclusionary abuses of dominance, adopted on 3 September 2026 and published in the Official Journal on 9 September 2026. They explain the Commission’s approach to dominance, exclusionary conduct, competitive effects, and objective justification, drawing on the case law of the EU Courts.

19. Conclusion: Market Power and the Integrity of Competition

Article 102 TFEU recognises that the competitive process can be undermined not only by agreements between competitors but also by the unilateral exercise of substantial market power.

The provision does not seek to prevent businesses from becoming successful or to preserve competitors that cannot withstand legitimate commercial rivalry. Instead, it establishes legal limits on the ways in which dominant undertakings may use their economic position.

Its application requires a careful assessment of market structure, competitive constraints, the nature of the conduct, and its actual or potential effects. The distinction between exclusionary and exploitative abuses is particularly important because the two categories involve different forms of competitive harm and may require different analytical approaches.

The development of digital markets has made the provision increasingly significant. Control over platforms, data, infrastructure, and access to customers can create economic power that extends beyond traditional market structures. The relationship between Article 102 and the Digital Markets Act demonstrates the Union’s use of both competition enforcement and specialised regulation to address these challenges.

The Commission’s 2026 Guidelines provide a more consolidated framework for assessing exclusionary conduct, but the Treaty and the interpretation developed by the EU Courts remain the foundation of the legal system.

Ultimately, Article 102 protects a principle at the heart of the internal market: economic success is legitimate, but market power must not be used to replace competition with exclusion, exploitation, or artificial barriers to entry.

20. Primary Legal Sources and Further Reading

Treaty provisions

• Article 102 TFEU — Abuse of a dominant position
• Article 101 TFEU — Anti-competitive agreements

EU legislation

• Council Regulation (EC) No 1/2003 — Implementation of Articles 101 and 102 TFEU
• Directive 2014/104/EU — Antitrust damages actions
• Directive (EU) 2019/1 — ECN+ Directive
• Regulation (EU) 2022/1925 — Digital Markets Act

European Commission guidance

• Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct (2026)
• European Commission — Application of Article 102 TFEU
• European Commission — Article 102 Investigation Procedures
• Commission Notice on the Definition of the Relevant Market (2024)

Selected Court of Justice authorities

• Europemballage and Continental Can v Commission, Case 6/72.
• United Brands v Commission, Case 27/76.
• Hoffmann-La Roche v Commission, Case 85/76.
• AKZO Chemie v Commission, Case C-62/86.
• Bronner, Case C-7/97.
• Deutsche Telekom v Commission, Case C-280/08 P.
• TeliaSonera Sverige, Case C-52/09.
• Intel v Commission, Case C-413/14 P.
• AKKA/LAA, Case C-177/16.
• Google and Alphabet v Commission, Case C-48/22 P.