Schjødt Nordic Competition Outlook

On 3 September 2026, the European Commission ("Commission") adopted Guidelines on the application of Article 102 TFEU to exclusionary abusive conduct by dominant companies, concluding a three-year process that included a call for evidence, a public consultation on a draft text in August 2024 and a stakeholder workshop in February 2025.

The Guidelines cover conduct such as predatory pricing (pricing below cost to force out competitors), margin squeeze (squeezing downstream rivals' margins), exclusive dealing (requiring exclusivity from customers or suppliers) and refusal to supply (denying access to an essential input), and are based on the case law of the EU Courts and the Commission's enforcement practice. They aim to give guidance on assessing dominance, including in ecosystems and after-markets, set out criteria for determining whether conduct departs from "competition on the merits" and leads to exclusionary effects, provide a framework for analysing specific types of conduct, and clarify how companies can justify conduct as objectively necessary or efficiency-enhancing. As regards exploitative abuses, the Commission has stated that it will continue to address those separately and may issue further guidance on that topic at a later stage.

Separately, on 16 September 2026, the Commission issued a Statement of Objections against MMG Limited ("MMG") over its proposed acquisition of Anglo American's nickel business, following a Phase II investigation opened on 4 November 2025. The Commission's preliminary view is that the acquisition, which would give MMG control of Brazilian low-carbon ferronickel operations and projects, could lead MMG to divert supply towards stainless steel producers affiliated with its ultimate controller, the Chinese State-owned Assets Supervision and Administration Commission, and away from European producers, in a highly concentrated market with limited alternative sources of supply. MMG now has the opportunity to respond to the objections, and the Commission has until 30 November 2026 to decide.

Takeaway: The Article 102 Guidelines replace 16 years of enforcement-priority guidance based on economic principles with legal guidelines based on case law. It provides a framework describing how the Commission assesses dominance and exclusionary conduct, including market-share thresholds for dominance and dedicated frameworks for specific types of conduct.

The MMG/Anglo American case is a reminder that the Commission continues to use its Phase II powers also in vertical/foreclosure merger scenarios, where the theory of harm is vertical foreclosure rather than a reduction in the number of horizontal competitors.

Read more here (Guidelines on Exclusionary Abuses) and here (MMG/Anglo American).

On 25 September 2026, the CMA found that Macquarie Asset Management's agreed acquisition of Energy Assets Group Holdings Limited (EAG) gives rise to a realistic prospect of a substantial lessening of competition in the supply of non-domestic, non-smart gas metering services in Great Britain, and gave the parties until 2 October 2026 to offer commitments. Macquarie already controls National Gas Metering (NGM), the established installer and reader of older-style, non-smart gas meters for business customers, while EAG is the current market leader. Macquarie also holds a minority stake in another competitor, Stark, through a separate part of its group. The merged company would hold a very high combined share once NGM is added, and the CMA found NGM would likely become a stronger, closer competitor to EAG once its current regulatory restrictions are lifted, while new entry remains unlikely given high entry costs, low customer switching, and a shrinking market. Although Stark sits in a separate part of the Macquarie group from NGM and EAG, with information barriers between them, and although Macquarie only holds a minority stake in Stark, the CMA could not rule out that the wider group would have the ability and incentive to ease competition between Stark, NGM and EAG.

On 9 October 2026, the CMA announced that it is considering legally binding commitments offered by Macquarie, under which EAG would sell its non-domestic, non-smart gas metering business to an approved purchaser capable of operating it as a viable competitor. The CMA found that these remedies could in principle address its concerns and will now examine them in more detail over 40 working days. If satisfied, it will conditionally clear the deal without a reference to phase 2.

Takeaway: Two points are worth mentioning. First, Macquarie's holding of a minority stake in a competitor was, on its own, sufficient to raise concerns – regardless of the stake being held through a completely separate part of the group, with its own management and formal information barriers in place to stop information flowing between the two sides of the business. The decision illustrates that CMA does not simply accept that this kind of internal separation rules out the group having any ability or incentive to soften competition. It will look at the substance of the group's position as a whole. Second, as the core overlap between the merging businesses was significant on its own, the CMA did not see the need to determine how much the affiliated minority stake added to the concerns. It relied on the main overlap alone and left the minority-stake question open.

Read more here.

On 3 September 2026, the Swedish Competition Authority (SCA) adopted an updated prioritisation policy for its enforcement activities. The policy sets out how the SCA selects which matters to examine more closely and includes two new chapters describing the SCA's priorities when applying the market investigation tool and enforcing the Act on Public Sales Activities that entered into force 1 August 2026.

Overall, harm to competition and consumers is the factor the SCA weighs most heavily for competition investigations. The SCA takes into account the benefit of intervention for a larger group of consumers and the economic importance of addressing the problem or securing a deterrent sanction. Moreover, the SCA gives high priority to cartels and other anti-competitive horizontal cooperation between competitors, such as price fixing, output restrictions and market sharing. For vertical restraints, it weighs the share of the relevant market affected, the market power of the parties, market concentration, and whether similar cooperation exists elsewhere on the same market. For abuse of dominance, it prioritises unilateral conduct capable of restricting other companies' ability to exert effective competitive pressure, weighing the share of the market affected, the importance of a foreclosed input, and, for pricing conduct, whether it can foreclose a hypothetical equally efficient competitor, alongside exploitative conduct that directly harms customers where competition is not functioning.

Where an identified competition problem cannot be effectively addressed through enforcement of the prohibitions against anti-competitive agreements or abuse of a dominant position, the SCA may instead use the new market investigation tool and adopt pro-competitive measures. This may be relevant where the competition problem is not caused by one or more undertakings having infringed the competition rules, but rather from a market structure or established industry practice that impedes effective competition. In deciding whether to give priority to such case, the SCA considers the possibility to effectively investigate and intervene with a proactive measure, and whether the SCA is best placed to act. It also considers whether the competition problem is significant, including whether it affects many consumers and the nature of the problem itself, as well as whether it can be resolved through relatively simple measures.

The updated prioritisation policy also includes a chapter on the enforcement of the new competition neutrality rules under the Act on Public Sales Activities, which prohibit public sales activities that unduly affect the ability of private undertakings to conduct business on the market. In addition to the overall prioritisation grounds set out above, the SCA primarily considers whether competition takes place on unequal terms between public actors and private undertakings, and whether private undertakings are harmed as a result. Particular priority is given to conduct causing significant harm.

Read more here.

On 21 September 2026, the Norwegian Competition Appeals Board (Konkurranseklagenemnda) rejected Telenor Norge AS's appeal against the Norwegian Competition Authority's ("NCA") decision of 8 June 2026 to clear Telenor's acquisition of Tipo AS (the broadband retail business of GlobalConnect AS) subject to the remedies proposed by the parties. Telenor's appeal was purely procedural and did not challenge the substance of the remedies package; instead, Telenor argued that the NCA's clearance decision was invalid in its entirety because redactions of confidential business secrets in the party-accessible version of the so-called '70-day notice' – the NCA's statutory, reasoned proposal for an intervention decision, which it must issue within 70 working days of notification – deprived it of the ability to properly safeguard its interests. Telenor argued that the redactions prevented it from assessing the strength of the NCA's theory of harm or proposing sufficiently targeted and proportionate remedies. On that basis, Telenor argued that the 70-day notice had to meet a stricter, 'qualified' standard of detail than an ordinary prior notice under the general administrative law rules, because of the significance that information has for a party's ability to respond effectively.

The Appeals Board found that the redacted information was highly competitively sensitive, that the notice nonetheless gave Telenor sufficient information about the NCA's theory of harm to safeguard its interests, and that the NCA had struck an appropriate balance between the parties' need for access and the need to protect business secrets. The Board expressly rejected Telenor's argument that such a 'qualified' content requirement applies to the 70-day notice. The Board also noted that Telenor had chosen not to challenge the remedies on their merits in the appeal. The Board concluded that the 70-day notice satisfied the statutory requirements and that the appeal should not be upheld.

Takeaway: The decision shows the ongoing balance in merger control between a party's right to be heard and the need to protect confidential business information. The Board confirmed that there is no fixed, 'qualified' standard for what a 70-day notice must contain; instead, each case is assessed on its own facts, looking at the process as a whole. This means parties cannot know in advance exactly how much detail they are entitled to at this stage, which may raise a broader question of legal certainty in merger review proceedings.

Read more here.

QUESTIONS? For questions or further discussion, please do not hesitate to contact Schjødt's EU & Competition team.