Article 102 TFEU and the European Commission’s 2025 Guidelines: What to expect and what to ask for

In March 2023, the European Commission announced its plans to publish guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to exclusionary abuses of dominance. This represents a major policy initiative which aims to reflect the significant developments in the case law of the EU Courts, as well as the decisional practice of the European Commission itself, since the publication of previous guidance in 2009 (the EC Guidance).

In an article published last year in the GCR Antitrust Review, we suggested that updated Article 102 guidance would be welcome. Recent theories of harm and anticompetitive practices, such as self-preferencing, data leveraging, naked restrictions, excessive pricing and anticompetitive disparagement, are not adequately addressed by the EC Guidance. In addition, even traditional forms of anticompetitive practices that are referenced in the EC Guidance, such as fidelity-inducing loyalty rebates, have been subject to case law developments which could be reflected in new guidance.

In this year’s GCR Antitrust Review, we discuss how the European Commission’s new guidelines can provide greater legal certainty for dominant businesses and their trading partners by reflecting an effects-based approach to enforcement. In particular, our article discusses in detail recent jurisprudence of the CJEU and provides recommendations on how the European Commission could seek to address and reflect these judgments in its new guidelines.

Please click here or on the image above for the full article.