The European Commission published the new Guidelines on exclusionary abuse

The European Commission has published its Guidelines on exclusionary abuses of dominance. They replace the 2008 Guidance on enforcement priorities, which is withdrawn and ceases to apply 30 days after the Guidelines are published in the Official Journal.

The new framework does not prevent dominant companies from competing aggressively. A dominant company can lower prices, innovate, develop better products, integrate its operations and win customers from competitors. The central distinction is between winning because the company’s offer is better and weakening competitors through methods that restrict their ability to compete. For companies with significant market positions, that distinction should now become part of ordinary commercial decision-making.

The most effective Article 102 compliance program is therefore not one that asks only whether a practice is prohibited. It asks earlier: why are we doing this, how does it affect customers and competitors, could we achieve the same business objective in a less restrictive way, and do we have the evidence to explain our decision if it is later challenged?

Many of the companies these Guidelines reach are also exposed to United States monopolization law, and the two systems answer the same commercial question differently often enough that a practice cleared on one side of the Atlantic cannot be assumed safe on the other. Each section below therefore ends with the United States position, set off in a marked paragraph.

The Three Stages of the EU Legal Framework

The Commission reduces an exclusionary-abuse case to three stages:

1) Market Power→2) Competitive Conduct →3) Possible Objective Justification.

At the first stage, dominance is a status settled before the conduct is examined, and that status attracts duties in dealing with competitors. At the second stage, the test is capability rather than realized effect, and for some conduct a presumption applies: when certain factual elements are established, the conduct is presumed to distort effective competition, and the evidentiary burden shifts to the undertaking, which may rebut the presumption with arguments and evidence. At the third stage, justification carries its own evidentiary requirements.

United States. There are two elements rather than three stages: monopoly power in a relevant market, and the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Justification is not a third stage but a rebuttal within the second element, and no presumption moves the burden of persuasion off the plaintiff at any point.

Stage One: Market Power

Dominance is a status. It is settled before the conduct is examined, and it attracts duties in the undertaking’s dealings with competitors. A very large market share held over a sustained period is by itself, save in exceptional circumstances, evidence of dominance, and that is so in particular at 50% or more. Dominance may also be found below 50%, where other factors — among them the strength and number of competitors — become particularly relevant. Below 40% dominance is “generally unlikely”. That is a soft threshold and not a safe harbor: a finding below it remains possible, for example where customers depend on the undertaking or competitors face serious capacity limitations. None of this is new substantive law; the 50% principle comes from established case law.

Market shares are not determinative. Weight is given to barriers to entry and expansion, including access to capital and — of particular significance in modern markets — data-driven advantages, network effects and digital ecosystems. The Guidelines treat access to large, high-quality datasets and the computational power to analyze them as capable of constituting barriers to developing artificial intelligence (¶ 31), and state that a high share held over a prolonged period may itself indicate barriers to entry or expansion (¶ 40).

A company approaching or exceeding a 50% share should not wait for an investigation. Commercial initiatives involving exclusivity, rebates, bundling, access restrictions, platform rules or the treatment of competing products should be reviewed before implementation. A company below 50% should not assume the rules are irrelevant, particularly where customers depend heavily on it, where competitors cannot readily increase capacity, or where entry requires substantial investment, data, scale, distribution or access to a platform.

United States.  Power is evidence, not a status, and the threshold is higher. United States law distinguishes market power from monopoly power; the difference is one of degree and of durability rather than of kind. Market power becomes monopoly power “only if it is durable”. FTC v. Meta Platforms, Inc. Monopoly power is the ability to price substantially above the competitive level and to persist in doing so for a significant period without erosion by new entry or expansion. It is proved either directly, by supracompetitive pricing sustained over time, or indirectly, by a dominant share of a defined market together with significant barriers to entry; direct evidence does not dispense with defining the market. On the numbers, the Ninth Circuit states that shares of 60 to 70 percent have supported findings of monopoly power and that courts generally require 65 percent for a prima facie case, while other courts state 70 to 80 percent. In November 2025, the court in FTC v. Meta held that a share of about one third of the market it had defined could not establish monopoly power as a matter of law. The 50% figure has no counterpart. Under Article 102, a very large share held over a sustained period is by itself, save in exceptional circumstances, evidence of dominance, so it is the firm under investigation that must displace the inference; in the United States, the plaintiff must prove barriers to entry and durability as part of its own case, and no share figure relieves it of that. Epic Games, Inc. v. Apple Inc. is the illustration: a share of 52 to 57 percent was market power, but it was not durable enough to be monopoly power.

There is also a difference of timing. On the view taken in FTC v. Meta, the plaintiff must prove that the defendant holds monopoly power now, so a defendant whose position has eroded since the conduct may prevail without its conduct being examined at all.  Under Article 102, dominance is assessed by reference to the period of the conduct, so the same erosion does not answer the case.

Stage two:  what makes a practice Illegal?

Several things do not decide the case. Not market power, which is not unlawful in itself. Not the intention to exclude: the Commission generally does not need to prove that the undertaking intended to exclude, although internal documents or other evidence of a deliberate strategy to shut competitors out can strengthen its case. Not actual exclusion: the effect must be more than hypothetical, but it is sufficient that the conduct is capable of producing the exclusionary effect, and the Commission need not show that the strategy would ultimately be profitable. Not proof of consumer harm: there is no requirement to show that consumers have already paid higher prices or suffered some other direct injury, because harm can result from damage to the competitive structure itself.

The key question is how businesses compete.

Winning customers by a better product, lower prices, better service or greater innovation is normal competition, even where competitors lose substantial business.

Pricing may trigger action: the level of a price, the discounts attached to it and the way it is structured. The practical question the Commission asks is whether a competitor as efficient as the dominant undertaking could still make money at the prices the dominant undertaking charges.

Conduct other than pricing is equally within the framework — self-preferencing, exclusive dealing, refusal to supply. The test is whether the undertaking is using methods other than competition on price, quality, or innovation to disadvantage rivals, and whether the conduct can realistically weaken competition.

A dominant platform that improves its own service so that customers prefer it is competing normally. A dominant platform that changes its ranking system so that its own service appears above competing services regardless of quality or relevance raises a different question.

The Commission also considers whether the undertaking limits rivals’ access to something important for competing, and whether that restriction could weaken them. Indispensability is generally not required unless the case falls under the narrower refusal-to-supply doctrine. A company should not assume that because competitors can technically survive without the input, Article 102 cannot apply: that may answer a strict refusal-to-supply claim without answering an access-restriction claim.

Two categories carry the highest risk. Conduct that is by its very nature harmful to competition is deemed illegal once established; the Commission’s own example is dismantling infrastructure to exclude competitors from using it. And exclusive dealing—arrangements requiring or strongly encouraging customers to buy all or most of their requirements from the dominant undertaking, whether by obligation or through rebates conditional on exclusivity—is presumed to distort effective competition, with the undertaking entitled to rebut the presumption with arguments and evidence.

United States. The starting point is similar, and the machinery is not. Conduct is exclusionary only if it harms the competitive process and thereby harms consumers; harm to one or more competitors will not suffice. As in Europe, the government generally need not wait until the strategy succeeds and competitors disappear. But there is no category of conduct presumed to distort competition and no category deemed harmful by its very nature. And a practice that is presumptively unlawful in Europe may simply be one the plaintiff has to prove out in the United States. Two further limits apply: a private plaintiff must also prove antitrust injury and causation of its own loss.

Pricing diverges furthest. A price above the appropriate measure of cost is lawful whatever its exclusionary effect and whatever the intent behind it; the plaintiff must prove pricing below cost and a dangerous probability of recouping the loss. Rebates show how much the classification matters. A loyalty rebate — a discount the customer earns by taking all or most of its requirements from one supplier — can be looked at in two ways. Seen as a price, the only question is arithmetic: the whole discount is attributed to the part of the customer’s demand that a rival could realistically compete for, and if a rival as efficient as the dominant firm could still cover its costs at the resulting price, the rebate is lawful, however effectively it holds the customer. Seen as a condition — money paid for a promise not to buy elsewhere — the question is instead how much of the market is closed to rivals, and the price level does not answer it. United States law starts from the first view and reaches the second only where the price is not the main instrument of exclusion. Even on the second view nothing is presumed: exclusivity by a firm with monopoly power is not unlawful in itself, and the plaintiff must prove that the arrangement forecloses a substantial share of the market, taking into account its coverage, its duration and how easily customers can leave. The Guidelines settle the same question in advance and by category: a rebate conditional on exclusivity is dealt with as exclusive dealing, where the conduct is presumed to distort competition and the undertaking must rebut the presumption, while rebates not conditional on exclusivity are assessed on their effects in a section of their own. The same rebate can therefore be lawful in the United States because the arithmetic clears cost, and presumptively unlawful in Europe because of the category it falls into. The economics is the same on both sides; the sorting rule is not

Access to inputs diverges next. United States law recognizes no general duty to deal. There is no separate category of access restrictions short of a refusal, so the European point that indispensability is generally not required has no counterpart: in the United States, a plaintiff who cannot bring the case within the narrow refusal-to-deal exception generally has no claim at all.

Conduct held unlawful in the current cycle shows the overlap that does exist: exclusive default and pre-installation agreements foreclosing the most valuable route to users, United States v. Google LLC. Tying a publisher ad server to an ad exchange by product design, United States v. Google LLC, contractual and technical restrictions on the channels through which a rival product reaches users.

Stage three: Objective justifications

Business justifications need evidence, not explanations. The dominant firm must establish either objective necessity or an efficiency defense: that the restriction was genuinely necessary for a legitimate business reason, such as safety, security, technical reliability, or the integrity of its service; or that the practice generated efficiencies that outweigh the harm to competition.

It must also provide evidence of the claimed benefits —lower prices, better quality, improved security, faster delivery, greater innovation. Those benefits must be real, measurable and likely to reach customers. Where a less restrictive means of achieving the same objective was available, the justification is unlikely to succeed. In practice, this means businesses should assess and document the reasons for a restrictive measure before introducing it, rather than reconstructing them once an investigation has begun.

United States.  “Objective justification” is European vocabulary; there is no equivalent term and no separate stage. The same material enters as a rebuttal inside the conduct inquiry, under several names: “valid business reasons” and “normal business purpose”, “procompetitive justification”, “procompetitive rationale.”  The sequence is that the plaintiff must show anticompetitive effect; the monopolist may then proffer a non-pretextual justification; and if that justification stands unrebutted, the plaintiff must show that the anticompetitive harm outweighs the procompetitive benefit. The defendant therefore carries a burden of production only, and the burden of persuasion never leaves the plaintiff, including at the balancing step.

The screen is also different in kind. It is sincerity rather than necessity: the claim must be non-pretextual, and no proportionality is required, because antitrust law “does not require businesses to use anything like the least restrictive means of achieving legitimate business purposes” and “courts should not second-guess ‘degrees of reasonable necessity’”. Alston

Three structural differences, in short

First, dominance is a status in Europe and evidence in the United States. In Europe, a share of 50% or more held over time will ordinarily establish the status, and the status attracts duties; in the United States, a share is one input into an inference of power, the threshold quoted is higher, and the power must be durable.

Second, the burden shifts in Europe and does not shift in the United States, though it shifts in two different ways. On dominance, the European formula is evidential — the legal burden of proving the infringement stays with the Commission under Article 2 of Regulation 1/2003 — but a very large share held over a sustained period leaves the undertaking as the party that must produce something. On conduct the Guidelines go further: where a presumption applies, the evidentiary burden moves to the undertaking outright. United States law has neither device: the plaintiff proves power, including barriers and durability, proves anticompetitive effect, and keeps the burden of persuasion throughout.

Third, justification is a stage in Europe and a rebuttal in the United States, and the two tests differ: objective necessity, benefits reaching customers, and the availability of a less restrictive means, against a screen that asks only whether the claim is a pretext.

The practical consequence for a company exposed to both systems is that the European analysis is the binding constraint. A practice that survives the United States tests may still be presumptively unlawful in Europe, and the evidence needed to rebut a European presumption has to exist before the practice is introduced.

Bundled discounts as potential anti-competitive exclusive dealing arrangements 

 The ruling highlights that bundled discounts and exclusive rebate contracts, particularly among dominant pharmaceutical companies, will face close scrutiny when they significantly hinder competitors from entering the market. Bundled discounts are usually seen as pro-competitive, benefitting buyers via lower prices and efficiencies. However, under certain circumstances, they can be exclusionary and violate antitrust laws. Where bundled discounts tie up substantial market share, particularly with customers who would otherwise consider rival suppliers, they can stifle competition and raise antitrust concerns. While courts recognize legitimate efficiency justifications (lower costs, improved logistics), discounts that exceed reasonable cost savings and are structured to maximize exclusion may be challenged under antitrust statutes.

Requirements

• Market Power Requirement (foreclosure concerns arise primarily when the bundling firm holds significant market power in at least one of the products in the bundle);
• Discount-Attribution Test (the test allocates the entire bundle's discount to the competitive product and asks if the resulting price falls below the defendant's incremental cost. If so, and if an equally efficient competitor cannot match, the arrangement may be deemed exclusionary and anticompetitive).

Ruling

On April 10, 2025, the federal court denied Amgen’s motion for summary judgment. The court found that Regeneron presented enough evidence for its antitrust and tortious interference claims to proceed to trial and that key factual disputes required jury consideration

The court determined there were unresolved factual questions regarding:

• Whether Amgen’s bundled discounts restricted Regeneron’s market access due to Regeneron's less diverse product portfolio.
• Whether Amgen’s rebate contracts with pharmacy benefit managers (PBMs) amounted to de facto exclusive dealing that substantially foreclosed Regeneron from the market.
• Whether Amgen’s pricing in certain portions of the market fell below cost under the "price-cost" test and whether recoupment was possible

Comment

The court cited precedent supporting the view that bundled discount practices and rebate arrangements could constitute actionable anticompetitive conduct if they result in market foreclosure (LePage’s Inc. v. 3M; ZF Meritor, LLC v. Eaton Corp.) The Cascade Health Solutions v. PeaceHealth test was referenced for below-cost pricing in bundled arrangements. The standard in Cascade makes the defendant's bundled discounts legal unless the “attributed” price of the competitive product is below the defendants incremental cost and the discounts have the potential to exclude a hypothetical equally efficient producer of the competitive product.

This ruling underscores that bundled discounts and exclusive rebate contracts, especially among dominant pharmaceutical companies, will be closely scrutinized when they may substantially foreclose competitors from the market. The case highlights increased litigation risk for pharmaceutical manufacturers whose PBM contracting practices leverage dominant drugs to secure exclusivity or preferred placement in formularies

Common Ownership and Antitrust 

FTC and  DOJ to support states' action against BlackRock, State Street, and Vanguard

The FTC and DOJ support the states' action accusing BlackRock, State Street, and Vanguard to harm competition as part of climate-related initiatives. The asset managers collectively own substantial shares in multiple competing coal companies  (between 24 and 34 percent of seven of the nine coal companies, with smaller shares in the remaining two).

By acting in concert—through shareholder resolutions, engagement, or other means—they allegedly pressured the management of competing coal companies to obtain their commitment to limit carbon emissions by restricting the production of coal within the United States.

Output reduction can lead to higher prices and reduced consumer welfare, both of which are hallmarks of anticompetitive behavior.  Such conduct can be challenged under Section 1 of the Sherman Act (prohibiting agreements that unreasonably restrain trade) and Section 7 of the Clayton Act (addressing mergers or acquisitions that may lessen competition).

Main Arguments:

- The “solely for investment” exemption in Section 7 of the Clayton Act does not provide blanket immunity to asset managers if they use their stock holdings to harm competition

- Control is not required: Minority shareholdings can violate antitrust laws if used to influence competitors’ business decisions in an anticompetitive manner, even without controlling stakes

- The Clayton Act Prohibits the Anticompetitive Use of Minority Interest Acquisitions to Substantially Lessen Competition

- Concerted action under Section 1 of the Sherman Act can be established even without explicit agreements

- Anticompetitive output restraint requires an overall decrease in production: Output can increase but still be restrained below competitive levels, harming competition

Comment: Weaponizing Antitrust or Enforcement?

The lawsuits against asset managers like BlackRock, State Street, and Vanguard—alleging that their climate-related shareholder actions amount to antitrust violations—are widely seen by critics as an attempt to use antitrust law to undermine climate and environmental, social, and governance (ESG) initiatives.

The FTC and DOJ, in their joint statement of interest, emphasize that the case is about the misuse of market power to manipulate energy markets, not about attacking climate goals.

They argue that when institutional investors use their influence across multiple competitors to achieve anticompetitive outcomes—such as restricting output and raising prices—this falls squarely within the scope of antitrust enforcement, regardless of the underlying motivation.

This case applies Section 7 (which focus on prospective harm from mergers) retrospectively to challenge how existing minority shareholdings were used post-acquisition. The agencies argue that post-acquisition conduct can demonstrate that the stock was not held “solely for investment”.  The DOJ and FTC cite precedent (e.g., United States v. ITT Continental Baking Co.) affirming that Section 7 applies to stock holdings used anticompetitively, not just their acquisition.

In conclusion, the agencies stop short of condemning common ownership outright and emphasize that conduct—not just structural shareholding—determines antitrust liability. Importantly, the FTC/DOJ’s stance establishes a new enforcement frontier: using antitrust law to police shareholder conduct.

Minority Shareholdings Collusion Risks

The €329 million European Commission's fine against Delivery Hero and Glovo signals a shift in European competition law, highlighting the significant risks of collusion associated with minority shareholdings in rival companies. The Commission found that Delivery Hero’s minority, non-controlling stake in Glovo (acquired from 2018 and increased to full control in 2022) enabled and facilitated unlawful coordination between the two companies. This included exchanging sensitive commercial information, dividing markets, and agreeing not to poach each other’s employees—practices that collectively constituted a cartel and violated Article 101 TFEU. This case is both the first time the European Commission has sanctioned the anti-competitive use of a minority shareholding in a rival company, and also the first EU enforcement case concerning labor market collusion (no-poach agreements), further broadening the scope of EU competition law.

The Commission clarified that minority shareholdings become problematic, not only when used to gain inside information, but also to influence decisions in ways that harm competition. The Commission’s action sends a clear warning to companies across sectors—especially those with cross-shareholdings or investments in potential rivals (e.g., Big Tech, banking)—that even non-controlling stakes can trigger antitrust liability if used to coordinate behavior or exchange sensitive information, suggesting increased vigilance regarding minority shareholder arrangements and labor market collusion and that further investigations and enforcement actions may follow.

Main Arguments:

- Minority Shareholding as a Collusion Channel: Delivery Hero’s minority stake was central to the infringement as it enabled Delivery Hero to access Glovo’s commercially sensitive information, influence its decisions, and coordinate strategies—well beyond what is permissible for a passive financial investor

- Mechanisms of Collusion: Formal (board representation, voting rights, and shareholder agreements, including no-poach clauses); Informal (Direct communications, including WhatsApp messages and emails, and the sharing of strategic business information that should have remained confidential)

- Nature and Scope of Collusion: the two companies exchanged sensitive commercial information (e.g., pricing, capacity, costs, market strategies); agreed not to poach each other’s employees and suppressed labor mobility and wages; and agreed to avoid entering each other’s national markets and coordinating entry into new markets

Comment: US/EU emerging convergence on minority shareholdings antitrust liability?

The FTC/DoJ and the European Commission actions establish a new enforcement frontier: using antitrust law to police shareholder conduct. A more nuanced, effects-based analysis of conduct and influence, making the line between legitimate investor oversight and anti-competitive coordination not always obvious.

Both US and EU authorities are thus converging on an approach that scrutinizes the effects and conduct associated with minority shareholdings, rather than condemning the structure itself.