Section 60A Competition Act: the gap in UK law caused by the new EU Article 102 (Abuse of dominance) Guidelines replacing pre-Brexit EU Guidelines
In short: section 60A Competition Act 1998 obliges a UK court, the CMA and the concurrent regulators to have regard to European Commission statements made before Brexit implementation period (IP) completion day (31 December 2020) and not subsequently withdrawn. At paragraph 246 of its Guidelines of 3 September 2026 the Commission withdrew its prior 2009 Article 102 (Abuse of dominance) Guidance. The obligation on UK regulators and courts to have regard to the 2009 EU Guidance ends with the withdrawal. The CMA’s remaining UK guidance on abuse is both short and out of date being from 2004.
For a UK business with a strong position in its market, the European Commission’s 2009 Guidance on exclusionary conduct has never been optional reading. Section 60A of the Competition Act 1998 obliges a UK court, the CMA and the sector regulators to have regard to it when they decide a question under the Chapter II prohibition. On 3 September 2026 the Commission adopted formal Guidelines in its place and withdrew the Guidance. The UK obligation to have regard to the 2009 EU Guidance falls away with the withdrawal, the Guidelines that replace it carry no equivalent obligation in the United Kingdom, and nothing in UK law fills the space.
Key points
- The Commission adopted the Guidelines on 3 September 2026 as Communication C(2026) 6118 final, running to 246 paragraphs and 494 footnotes. Source: European Commission
- At paragraph 246 the Commission withdrew the 2009 Guidance on enforcement priorities and provided that it does not apply as of 30 days after publication of the Guidelines in the Official Journal. Source: C(2026) 6118 final, paragraph 246
- In Deckers UK v Up & Running (UK) on 8 May 2026 the Court of Appeal held that Commission guidance replaced after IP completion day has been withdrawn, so the section 60A(3) obligation ends and only the discretionary route under the European Union (Withdrawal) Act 2018 survives. Source: [2026] EWCA Civ 553 at paragraph 50
- The CMA’s substantive guidance on abuse of a dominant position is OFT402, published on 1 December 2004, 24 pages long and not withdrawn. Source: gov.uk
- No Official Journal publication of the Guidelines had appeared as at 4 September 2026, so the 30 day period had not begun. Source: EU Publications Office metadata store
- Section 60A(3) requires the decision-maker to have regard to Commission decisions and statements made before IP completion day and not withdrawn. Source: legislation.gov.uk
What the Guidelines cover
The Guidelines run to 246 paragraphs and replace a twenty-page notice. The table below sets out each part of them and where it sits, so a reader can go straight to the conduct type that matters to their own business.
| Topic | Paragraphs | What the Commission set out |
|---|---|---|
| Assessing dominance | 16 to 53 | How to assess single dominance, covering market position, barriers to entry or expansion, countervailing buyer power and after-markets, and collective dominance based either on links between undertakings or on tacit coordination. |
| Departure from competition on the merits | 67 to 78 | The concept of a departure from competition on the merits, and the factors relevant to establishing one. |
| Capability to produce exclusionary effects | 79 to 106 | What counts as an exclusionary effect, which type of effects analysis applies to pricing, non-pricing and multi-faceted conduct, causation, and the elements relevant to assessing capability. The equally efficient competitor benchmark has predominantly mattered to pricing abuses. |
| Predatory pricing | 108 to 122 | Pricing below cost to exclude a competitor. |
| Margin squeeze | 123 to 135 | Pricing an upstream input and a downstream product so that a competitor on the downstream market cannot trade profitably. |
| Rebates not conditional on exclusivity | 136 to 150 | Loyalty-inducing rebate structures that fall short of an exclusivity condition. |
| Exclusive dealing | 151 to 161 | Exclusive supply and purchase obligations, and conduct equivalent to them in effect. |
| Tying and bundling | 162 to 178 | Conditioning the supply of one product on the purchase of another, and commercial bundling. |
| Access restrictions | 179 to 182 | Denying access to an input on commercially viable conditions, or otherwise hindering or delaying it, assessed by applying the general principles in section 3. |
| Refusal to supply | 183 to 189 | Outright refusal to supply an input to a competitor. |
| Self-preferencing | 190 to 196 | More favourable treatment of the dominant undertaking’s own products, mainly by non-pricing behaviour. There is no general rule that self-preferencing is problematic, even for a dominant undertaking, but specific situations exist in which it distorts effective competition. |
| Conduct harmful by its very nature | 197 to 201 | Conduct with no economic interest for the dominant undertaking other than restricting competition, which falls manifestly outside competition on the merits. |
| Objective justification and efficiencies | 202 to 245 | The objective necessity defence, and the efficiency defence across verifiable efficiencies, fair share for consumers, indispensability and no elimination of effective competition. |
What section 60A obliges a UK decision-maker to do
Under subsection (2) of section 60A of the Competition Act 1998, the decision-maker must act with a view to securing that there is no inconsistency with the principles laid down by the Treaty on the Functioning of the European Union and the European Court before IP completion day. Subsection (3) adds a separate obligation: to have regard to any relevant decision or statement of the European Commission made before IP completion day and not withdrawn.
Subsection (1) names the persons bound: a court or tribunal, the CMA, and a person acting on behalf of the CMA in connection with a matter arising under Part 1. Parliament inserted the section with effect from 31 December 2020 by regulation 23 of the Competition (Amendment etc.) (EU Exit) Regulations 2019, as amended by SI 2020/1343.
Its subject matter is a question arising under Part 1, which is to say the Chapter II prohibition in section 18 and the Chapter I prohibition in section 2. In the umbrella interchange fee proceedings the Competition Appeal Tribunal said, obiter, that section 60A does not extend to Articles 101 and 102 TFEU themselves ([2023] CAT 49 at paragraph 76(7)), so the obligation operates on the domestic prohibitions, which is where a UK business experiences its impact.
The Court of Appeal has already decided what withdrawal does
In Deckers UK Limited v Up & Running (UK) Limited [2026] EWCA Civ 553, decided on 8 May 2026, Green LJ held that Commission guidance displaced after IP completion day counts as withdrawn for section 60A(3). The appeal turned on two Commission notices on vertical restraints. The 2022 Guidelines postdate IP completion day, so no subsection (3) obligation attaches to them. The 2010 Guidelines predate it but have been replaced, and at paragraph 50(viii) Green LJ said that “since they have been withdrawn, courts and tribunals are not obliged to have regard to them under section 60A(3) CA 1998 but may do so under section 6(2) WA 2018”.
Green LJ prefaced the list by recording that the proper approach was common ground between the parties, so the Court adopted an agreed position and did not decide a contested one. The appeal concerned the Chapter I prohibition and his paraphrase is framed in those terms, although section 60A(1) applies to any question arising under Part 1. The two instruments are also of different kinds: the vertical restraints notices are interpretive guidance on an exemption, where the 2009 Guidance sets out how the Commission chooses its enforcement priorities. Whether that difference matters to the meaning of “statement” in subsection (3) is untested.
The route Green LJ identified as the survivor is section 6(2) of the European Union (Withdrawal) Act 2018, under which a court or tribunal may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU, so far as it is relevant to the matter before it. The 2026 Guidelines are within that, so a judge or the Competition Appeal Tribunal may consider them without being obliged to. Section 6(2) names a court or tribunal and does not name the CMA or the concurrent regulators. That is an absence of a statutory gateway rather than a prohibition, because a public authority may ordinarily consider material it thinks relevant, but it leaves the regulators who decide most Chapter II questions outside the express permission Parliament gave the courts.
When the obligation to have regard to the 2009 Guidance ends
Section 60A(3) depends on withdrawal and says nothing about application, so the UK obligation ends on the date the 2009 Guidance was withdrawn. At paragraph 246 the Commission wrote that the Guidance “is hereby withdrawn and does not apply as of 30 days after the publication of these Guidelines in the Official Journal”.
Which decision-makers the obligation applies to
Section 60A applies beyond the CMA through the concurrency regime, which is why it matters in telecoms and payments. Section 54(1) of the Competition Act 1998 defines the regulators for Part 1 purposes, a list that includes the Office of Communications, the Payment Systems Regulator and the Financial Conduct Authority.
For a Communications Provider, section 371 of the Communications Act 2003 makes the CMA’s Part 1 functions concurrent functions of Ofcom so far as they relate to conduct of the kind mentioned in section 18(1) connected with communications matters, and section 371(3) reads references to the CMA in Part 1 as including Ofcom. The exceptions listed at section 371(3)(a) do not include section 60A. For a payment service provider, section 61 of the Financial Services (Banking Reform) Act 2013 does the same for conduct relating to participation in payment systems, and its exception list at section 61(5)(a) does not include section 60A either. Both provisions also disapply the reading where the context otherwise requires, and no court has tested whether that saving covers section 60A.
An operator facing an Ofcom investigation into access restrictions or margin squeeze, and a payment service provider facing the PSR on scheme access terms, are therefore in front of a decision-maker who was under the same subsection (3) obligation as the CMA, and who is now under none. Both conduct types have their own section in the Guidelines, and neither is governed by the Guidelines in the United Kingdom. Where a Chapter II question has to be placed against a sector regime, the investigations and enforcement support page addresses it.
What the UK has instead
The CMA’s substantive guidance on the Chapter II prohibition is OFT402, Abuse of a dominant position, published by the Office of Fair Trading on 1 December 2004, adopted by the CMA Board, 24 pages long, and not withdrawn. The CMA publishes it with its own caveat that the original text has been retained unamended and “does not reflect or take account of developments in case law, legislation or practice since its original publication”. Its treatment of exclusionary conduct is paragraphs 5.5 and 5.6. It carries no as-efficient-competitor test and no cost benchmarks. It has no form-specific analysis of predation, exclusive dealing, tying, refusal to supply or margin squeeze, each of which the Guidelines address in a section of its own.
The concurrent regulators point back to it. The FCA states at paragraph 1.6 of FG15/8 that the document covers procedure, and that for guidance on the application of the Competition Act prohibitions the reader should use the CMA’s documents, naming OFT402. The PSR says the same in its CA98 guidance, PS15/2.1 of August 2015. Ofcom addresses procedure only in its Competition Act enforcement guidelines and has issued nothing on exclusionary abuse. Under the Digital Markets, Competition and Consumers Act 2024 the CMA regulates designated firms rather than dominant undertakings generally, so that regime runs alongside Chapter II without replacing it, as the note on the CMA’s steering conduct requirements sets out.
Viewpoint
I read the practical effect as a quiet narrowing of the material a UK decision-maker is obliged to consider, arriving through an instrument that was not drafted with the United Kingdom in mind. Nothing in the Guidelines addresses section 60A, and there is no reason it should, because the Commission was tidying its own enforcement framework and the UK consequence is a by-product of that.
A UK business assessing whether a rebate scheme or an access restriction is lawful now has a 2004 guideline whose author has disclaimed its currency, a 2026 Commission text nobody is obliged to read, and a discretionary power under the Withdrawal Act that names courts and tribunals but not the regulators who will decide the question first. The CMA has published nothing on the Guidelines or on the withdrawal as at 4 September 2026, and we are not aware of any live consultation on substantive dominance guidance. Refreshing OFT402 would be a large undertaking, and the CMA’s own caveat that the text does not take account of developments since 2004 has stood unaddressed for two decades. Which Commission material binds a UK tribunal, rather than merely informing it, is a separate mechanism under section 58A, addressed in the note on digital platform follow-on litigation.
Frequently asked questions
Do the new Article 102 Guidelines apply in the UK?
No. They are a European Commission statement made after IP completion day, so section 60A(3) of the Competition Act 1998 does not apply to them and no UK decision-maker is obliged to have regard to them. A court or tribunal may choose to consider them under section 6(2) of the European Union (Withdrawal) Act 2018, which is a power rather than a duty.
Has a UK court decided what happens when Commission guidance is withdrawn?
Yes. In Deckers UK Limited v Up & Running (UK) Limited [2026] EWCA Civ 553 at paragraph 50(viii), on 8 May 2026, the Court of Appeal treated superseded Commission guidance on vertical restraints as withdrawn, so that the section 60A(3) obligation ended and only the discretionary section 6(2) route remained. That appeal concerned the Chapter I prohibition and no court has yet applied the reasoning to the 2009 Guidance.
When does the 2009 Guidance stop applying?
Paragraph 246 of the Guidelines provides that it does not apply as of 30 days after publication of the Guidelines in the Official Journal. No such publication had appeared as at 4 September 2026, so that period had not started.
Does section 60A apply to Ofcom and the Payment Systems Regulator?
Yes, when they exercise their concurrent Competition Act functions. Section 371(3) of the Communications Act 2003 reads references to the CMA in Part 1 of the Competition Act 1998 as including Ofcom, and section 61(4) of the Financial Services (Banking Reform) Act 2013 does the same for the Payment Systems Regulator. Neither exception list covers section 60A, although both provisions also disapply the reading where the context otherwise requires, which no court has tested.
What UK guidance covers abuse of a dominant position?
OFT402, Abuse of a dominant position, published on 1 December 2004 and adopted by the CMA Board. It is 24 pages, it has not been withdrawn, and the CMA publishes it with a caveat that it does not take account of developments since publication. The FCA and the Payment Systems Regulator both direct readers to it for the substantive law.
If you are assessing a Chapter II exposure, or a sector regulator’s use of its concurrent Competition Act powers, Bratby Law advises telecoms operators, payment service providers and digital infrastructure businesses. Contact Rob Bratby.
