On Monday 12 July, the European Commission published a working document summarising the evaluation of the Commission Notice on the definition of relevant market for the purposes of Community competition law of 9 December 1997.
“Overall, the evidence gathered in the evaluation indicates that the Notice is a very useful tool and remains generally relevant”, according to the document.
However, the results of the evaluation also suggest that there are areas where the Notice may not fully take into account the evolution of the Commission's approach and recent developments in EU case law.
The Commission has refined its approach to market definition on the basis of the theories of harm examined, the prevailing market conditions, and the sophistication of available tools.
This includes the use and purpose of the SSNIP (small significant non-transitory increase in price) test in different market configurations, the assessment of market definitions in rapidly changing markets, asymmetric constraints, the assessment of geographic markets in conditions of globalisation and import competition, quantitative techniques, the calculation of market shares, and non-price competition, including innovation.
In addition, the results of the evaluation indicate that, although the principles of market definition remain unchanged, their application in digital contexts may give rise to an additional level of complexity.
This includes defining markets for multi-sided platforms, particularly where services are provided at zero monetary price, defining ‘ecosystem’ markets, and assessing online versus offline competition.
Digitalisation can lead to new barriers to entry and switching costs. This is due to the role of data (portability), interoperability, privacy issues, network effects and single/multiple hosting.
See the document: https://bit.ly/36zTOr2 (Original version in French by Lionel Changeur)