The European Commission has quietly rewritten the rules it uses to decide whether a company holds a dominant position, inserting a clause that lets firms argue their market power is justified if their business practices advance sustainability objectives. The revised guidelines, published on 3 September, keep the long-standing presumption that a market share above 40% signals dominance but add that this presumption can be rebutted where the conduct in question pursues "legitimate sustainability goals" recognised under EU law.
What the new guidelines actually say
The document replaces the 2009 guidance on Article 102 TFEU, the treaty provision that prohibits abuse of a dominant position. The Commission still defines dominance as the ability to behave independently of competitors, customers and consumers to an appreciable extent. The 40% threshold remains the starting point for that assessment. What changes is the analytical framework: a dominant firm can now present evidence that conduct which might otherwise look exclusionary, such as refusing access to an essential facility or tying products, delivers sustainability benefits that outweigh the competitive harm.
The guidelines list examples: joint purchasing agreements that reduce carbon emissions, standard-setting that improves energy efficiency, or refusal to supply a rival whose production methods are significantly more polluting. In each case the firm must show the restriction is indispensable to the sustainability objective, that consumers get a fair share of the benefit, and that competition is not eliminated entirely. The burden of proof stays with the dominant company.
Why the Commission moved now
The revision follows two years of consultation after the Commission's 2024 communication on "competition policy for the green transition". That paper argued existing rules were too rigid to accommodate the European Green Deal's ambitions. Commissioner Teresa Ribera, who took over the competition portfolio in December 2024, has made the alignment of antitrust with climate targets a signature priority. In a speech to the European Parliament's economic committee in March, she said the old guidelines "created legal uncertainty for companies investing in the transition" and that a "clearer framework" would encourage sustainable innovation without weakening enforcement.
The Commission also points to recent court rulings. In 2023 the General Court upheld a fine against a chemicals cartel but acknowledged that environmental objectives could, in principle, be weighed in the proportionality assessment. The new guidelines codify that logic, turning a judicial hint into an administrative tool.
The academic revolt
The reaction from competition scholars was swift and unusually coordinated. Within 48 hours of publication, 28 economists and legal academics, including three former chief economists of the Commission's Directorate-General for Competition, sent an open letter to von der Leyen and Ribera. The letter argues the guidelines "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 signatories contend the sustainability exemption is vague enough to cover almost any investment a dominant firm chooses to label green. They note the guidelines do not require independent verification of the claimed environmental benefit, nor do they define a baseline against which additionality is measured. One signatory, a professor at the College of Europe, told me the text "reads like a defence manual for incumbents" rather than an enforcement framework.
Big Tech in the crosshairs
The practical stakes are highest for the platforms already designated as gatekeepers under the Digital Markets Act. Google, Apple and Microsoft have each been found dominant in multiple markets, search, mobile operating systems, cloud infrastructure, and have paid billions in fines. All three have extensive sustainability programmes: Google has matched 100% of its electricity use with renewable purchases since 2017; Apple aims for carbon neutrality across its supply chain by 2030; Microsoft pledges to be carbon negative by 2030.
Under the new guidelines, a future Commission investigation into, say, Google's self-preferencing in search could be met with the argument that the practice funds renewable energy procurement at a scale smaller rivals cannot match. Apple's App Store rules might be defended as enabling a curated ecosystem that reduces electronic waste by extending device lifespans. Microsoft's bundling of cloud services could be framed as driving energy-efficient data centre consolidation. None of these defences would have been admissible under the 2009 guidelines.
How the exemption works in practice
The guidelines set out a three-step test. First, the agreement or conduct must pursue a sustainability objective recognised in EU law, the taxonomy regulation, the corporate sustainability reporting directive, or the Green Deal's legislative package. Second, the restriction of competition must be indispensable to achieving that objective; if a less restrictive alternative exists, the defence fails. Third, the benefits must be passed on to consumers, defined broadly to include future generations and the environment, not only current purchasers.
Crucially, the guidelines state that the Commission "will generally not intervene" where the market share of the dominant firm is below 50% and the sustainability benefits are "clearly established". That safe harbour does not exist in the current case law. It effectively creates a zone of tolerance for dominant firms between 40% and 50% share, provided they can document a green rationale.
Political context and institutional tensions
The revision did not require a legislative vote. As soft law, guidelines are adopted by the College of Commissioners and take effect immediately. That procedural lightness is deliberate: the Commission avoided a co-decision process that would have given the European Parliament and Council amendment rights. MEPs from the Greens and the Left have already tabled questions asking whether the guidelines exceed the Commission's mandate under Article 103 TFEU, which limits implementing measures to "the form of regulations or directives".
National competition authorities are also watching. The French Autorité de la concurrence and the German Bundeskartellamt both issued statements welcoming the "clarification" but stressing they will apply their own national laws, which in Germany's case include a stricter dominance threshold of 30% in certain sectors. The Italian authority has asked for a joint interpretative note to ensure the sustainability defence does not fragment the single market.
What the courts will decide
The ultimate test comes when a dominant firm invokes the new defence in a contested case. The General Court and the Court of Justice are not bound by the guidelines; they interpret the treaty directly. In recent years the courts have been sceptical of economic defences that dilute the per se prohibition of certain abuses. The 2022 Intel judgment reaffirmed that rebates can be abusive without proof of foreclosure effect if they are "likely" to restrict competition. A sustainability defence that requires weighing environmental benefits against competitive harm introduces a balancing exercise the Court has historically resisted.
Legal practitioners in Brussels expect the first test case within 18 months. A likely candidate is an ongoing investigation into a cloud infrastructure provider accused of contractual tying. The respondent has already signaled it will argue the tied services enable workload optimisation that cuts data centre energy use by 15%. The Commission's investigative team will have to decide whether to accept that metric or press for a statement of objections.
People mentioned
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Foo Yun Chee
Organisations
European Commission · Alphabet Inc. · Apple Inc. · Microsoft Corporation
