Baker Botts was pleased to sponsor the 14th edition of the Global Antitrust Hot Topics: EU, US & Global Perspectives, one of the premier gatherings in the EU competition law community. The September 24, 2026 program featured insights from the European Commission, economists, lawyers, journalists and in-house practitioners, providing attendees with the opportunity to hear first-hand about forthcoming developments in EU and US competition policy.

The panel on Recent Developments in Abuse of Dominance & Monopolization brought together Elisa Mariscal (Principal at Cornerstone, London), Nicolas Petit (Professor of Competition Law at the Department of Law of the European University Institute, Florence), John Taladay (Partner at Baker Botts, Washington D.C.) and Maria Teresa Stecher (Senior Policy Manager at CCIA Europe, Brussels). It is no surprise that the panel, moderated by Matthew Levitt (Partner at Baker Botts, Brussels and London), focused on the European Commission’s recently adopted Article 102 TFEU Guidelines on exclusionary abuses of dominance.

The Guidelines: Codification with a Creative Edge?

On September 3, 2026, the Commission adopted its long-awaited Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings (“Guidelines”). The Commission describes the Guidelines as providing a “workable effects-based approach” to the enforcement of Article 102. Our panelists examined their practical implications.

The Guidelines are largely a codification of the EU courts’ case law on abuse of dominance. Virtually every paragraph cites the jurisprudence of the Court of Justice, and one panelist described the document as reading “like a textbook on 102 in the tradition of continental scholarship.” The economic tools set out in the Commission’s 2009 Guidance on the Commission’s on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (“Guidance Paper”) remain available. These include the as-efficient competitor test, the contestable demand analysis, and the efficiency defense. At the same time, the Guidelines address issues that the EU courts have either not yet decided or that remain open to interpretation. A notable example is the shift from a standard of “likelihood” to one of “capability to foreclose,” which subtly lowers the evidentiary threshold that the Commission must meet. Panel participants also pointed to a number of inconsistencies within the Guidelines, citing the concept of “competition on the merits”. An ambiguity remains unresolved here: some paragraphs define it as a process, while others describe it as an outcome. These are two analytically distinct frameworks.

Key themes included:

• A ‘semantic drift’ in the Guidelines: One panelist pointed to subtle but consequential differences between the language of the EU courts’ case law and that of the Guidelines. For example, the Intel judgment speaks of the dominant undertaking’s ability to ‘submit’, during the administrative procedure, ‘supporting evidence’ that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects (Intel Corp. v. European Commission, Case C-413/14 P, para. 138).¹ The Guidelines escalate this to a ‘rebuttal’ of the presumption by a showing of ‘sufficient evidence’ (para. 58). The Guidelines were also found at times to go beyond the EU courts’ case law. In the context of exclusive dealing, the General Court held in Qualcomm (Exclusivity payments) (para. 415) that a dominant undertaking seeking to challenge the Commission’s theory of harm may argue that the exclusionary effects are purely hypothetical, because the customer would in any event have purchased the volumes covered by the exclusivity arrangement from the dominant undertaking. Paragraph 157(b) of the Guidelines adds that this argument is relevant only where the dominant undertaking’s customer was aware that no other supplier could supply any part of the volumes covered by the exclusivity arrangement. This qualification finds no support in the case law and is impractical and uncommercial.


• Legal (un)certainty: Panelists also questioned whether the Guidelines will in fact bring businesses greater legal certainty, which is one of their primary stated objectives. Two provisions attracted particular criticism. First, paragraph 58 explains that “the more a given conduct is considered generally likely to distort effective competition, the less case-specific evidence is required to prove that this is the case, and the other way around.” This effectively introduces presumptions into Article 102 enforcement, and panelists expressed concern about a shift from an evidence-based approach to a presumption-based assessment. Second, paragraph 24 of the Guidelines indicates that, in certain circumstances, “dominance can still be found in case of market shares below 40%”. This effectively does away with the Guidance Paper’s market-share-based safe harbor from a finding of dominance. One participant urged regulators to consider seriously the chilling effect of an uncertain regulatory environment on the tech sector, particularly at a time when the Commission has emphasized the need to boost European competitiveness.


• Coexistence and tension with the Digital Markets Act: Panel participants discussed whether the tech sector may, in effect, be subject to sector-specific rules in the enforcement of Article 102. The Guidelines are soft law, based on the EU courts’ case law and intend to bring interpretation and practical guidance. The Digital Markets Act (“DMA”), by contrast, is a statutory instrument which has been described as a codification of the Commission’s decisional practice in the tech sector, which in some instances is itself based on an expansive interpretation of concepts developed in Article 102 enforcement (e.g., tying). On the other hand, it was pointed out that the DMA is a narrow instrument that applies only to seven gatekeepers across 24 core platform services, and that Articles 101 and 102 remain “alive and kicking,” including for the tech sector. Another panelist raised a concern about impartiality: can an enforcer that has designated a gatekeeper under the DMA remain impartial when examining a potential infringement by that gatekeeper in an Article 102 case, having potentially prejudged facts relevant to dominance? In this regard, the panel discussed whether it would be preferable for the DMA to be enforced by a separate agency.


• The role of economics and consumer harm: The Guidelines’ description of a theory of harm as ‘explanatory’ (para. 57) is linked to the “semantic drift” noted above. It remains unclear whether theories of harm are merely illustrative or whether they are dispositive and subject to challenge. One panelist regretted in particular that the Guidelines do not set out a structured rule of reason. The Guidelines also appear to tiptoe around the concept of consumer harm. In particular, it is not clear whether exclusionary effects really must affect consumers, or whether harm to competitors alone may be sufficient. Attention was drawn to footnote 3 of the Guidelines, which quotes Servizio Elettrico Nazionale and elevates “the well-being of both intermediary and final consumers” as the ultimate objective justifying competition law intervention.


• EU-US divergence and global ripple effects: One of the panelists highlighted a number of technical and practical differences between the EU and the US approach to unilateral conduct. They noted that Europe has created a “market” for complainants on dominance issues, with US lawyers routinely looking for a ‘European hook’ when consulted by domestic complainants. Importantly, because EU competition rules are enforced through an administrative procedure, the Commission’s Guidelines are expected to carry more weight than their US counterparts, since US enforcers have to make their case before a court. The panelist added that the Commission has become the leading reference point for competition authorities worldwide. Other jurisdictions can therefore be expected to issue their own unilateral conduct guidelines modelled after the Commission’s, amplifying the Guidelines’ impact well beyond Europe.

This client update sets out the key takeaways from the debate. We would be happy to provide further insights into these important developments.

---

¹ Similarly, Unilever refers only to a situation where the dominant undertaking ‘disputes’, ‘with supporting evidence’, the capacity of contractual clauses to exclude equally efficient competitors from the market (Unilever Italia Mkt Operations, C-680/20, para. 52).

ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.