The European Commission has adopted new guidelines for Article 102 TFEU, establishing a updated framework for assessing exclusionary abuses by dominant companies. The rules place increased focus on digital markets, data advantages, and network effects, providing specific analytical criteria for practices like self-preferencing and tying.
The updated European Commission Article 102 guidelines signal a shift toward proactive enforcement against digital gatekeepers by lowering the evidentiary bar for exclusionary effects. For streaming platforms and ad-tech providers, this means data-driven advantages and self-preferencing are now under stricter scrutiny, even without proof of direct consumer harm. The broader ecosystem must prepare for a regulatory environment where 'naked' restrictions are deemed harmful by nature, potentially limiting how dominant players bundle services or restrict rival access to hardware. Watch for the first enforcement actions under these guidelines to see how the Commission balances technical security justifications against the new presumption of harm for exclusive dealing.
The European Commission's updated Article 102 guidelines arrive amid a broader regulatory push targeting digital platform gatekeepers. In March 2024, the Commission opened formal proceedings against Apple under Article 102 over App Store restrictions on music streaming services, specifically alleging that Apple prevented developers from informing users about cheaper subscription options outside its ecosystem. That case, which resulted in a €1.8 billion fine, established the Commission's willingness to treat self-preferencing in app distribution as exclusionary conduct even absent direct price effects, a logic now codified in the new guidelines' treatment of data advantages and network effects.
The business implications extend beyond individual enforcement actions into how dominant platforms structure their commercial relationships. In July 2025, the Commission published its final report on the Digital Markets Act's first two years of enforcement, documenting how gatekeeper designations under the DMA interact with Article 102 proceedings. The report noted that companies designated as gatekeepers face parallel obligations under both frameworks, creating a layered compliance burden where conduct cleared under DMA-specific rules may still trigger Article 102 scrutiny if it produces exclusionary effects in adjacent markets. For streaming platforms operating within larger tech ecosystems, this dual-track approach means that bundling decisions, API access policies, and data-sharing arrangements require simultaneous assessment under both instruments.
The technical standards for assessing dominance in digital markets have also evolved through recent case law and Commission practice. In September 2025, the General Court upheld the Commission's methodology for defining relevant markets in multi-sided digital platforms in its Google Shopping judgment, confirming that network effects and data accumulation can constitute barriers to entry independent of traditional market-share metrics. The court endorsed the Commission's approach of treating user attention and data access as distinct competitive parameters, a framework now embedded in the new guidelines' analytical criteria. For streaming services and ad-tech providers, this means that market-share calculations below the 40% soft safe harbor may still trigger scrutiny if the Commission identifies significant data asymmetries or switching costs that entrench a platform's position relative to rivals.
The European Commission has updated its Article 102 guidelines for the first time in two decades to address exclusionary abuses in digital markets. By prioritizing data advantages and network effects, the new framework lowers the evidentiary bar for enforcement, signaling stricter scrutiny for digital gatekeepers regarding self-preferencing and ecosystem lock-in.
The updated guidelines establish a soft safe harbor for companies with market shares below 40%.
Exclusive dealing practices now carry a presumption of harm, which shifts the burden of proof to the dominant firm to justify its conduct.
Yes, digital platforms may still face scrutiny if the Commission identifies significant data asymmetries, network effects, or switching costs that entrench a platform's position.
Objective justifications for restrictive conduct must now meet a four-part cumulative test, which includes a new recognition of sustainability benefits.
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