The European Commission on Thursday published revised guidance on how it will apply Article 102 of the EU competition rules, signalling that certain actions by large firms may be defensible when they deliver demonstrable sustainability benefits.
Under the new guidance, the Commission continues to treat companies holding more than 40% of a relevant market as dominant. However, the regulator said that conduct by such firms that limits competitors could be permissible if it demonstrably reduces raw material use, cuts pollution, increases the use of recyclable products or strengthens the resilience of supply chains. The revised text also notes that measures creating cost-savings for consumers will be taken into account.
The guidelines are intended to offer clearer direction to companies on whether they are dominant and in which specific markets, helping firms evaluate the regulatory risks of their commercial strategies.
The changes relate to Article 102, a central enforcement tool of the Commission that has previously resulted in substantial fines for major technology companies. The Commission highlights that the statute has been used in recent years in cases that led to heavy penalties for Apple, Google and Microsoft after authorities concluded those firms had used their market power to thwart rivals.
Not all observers welcomed the shift. A collective of 28 academics and economists, among them former senior Commission economists, sent a joint open letter to Commission President Ursula von der Leyen and EU antitrust chief Teresa Ribera, expressing concern the updated approach could be abused to justify unfair dominance.
The guidelines, the letter said, "introduce presumptions and analytical shortcuts that do not distinguish appropriately between anti-competitive conduct and pro-competitive conduct that reflects business acumen, superior skill, or efficiency by dominant firms."
The correspondence from the academics frames the reform as creating potential analytical shortcuts that might blur the line between conduct that harms competition and conduct that reflects legitimate competitive strengths.
Regulators say the intent of the revisions is to balance competition enforcement with evolving policy priorities around sustainability and resilience. Critics, however, caution that the new framework could provide cover for behavior that entrenches market power rather than fostering competition.
Summary: The Commission's updated Article 102 guidance allows sustainability and consumer cost-savings to factor into whether dominant firms' conduct is permissible, while clarifying dominance thresholds and market assessment. A group of academics warned the changes risk enabling firms to justify anti-competitive conduct under the guise of sustainability.