Consultation regarding the EU Market Definition Notice

By Anne Federle, Pauline Van Sande

07-2020

In our February newsletter, we already commented on the proposed EU competition law reforms after pressure of the Member States and other stakeholders on the European Commission mounted.

The initial work programme of the Commission included evaluating and reviewing the Vertical Block Exemption Regulation (VBER), the Horizontal Block Exemption Regulations (HBER), the Consortia Block Exemption Regulation, the ETS State Aid Guidelines and the extension of the State Aid Modernisation (SAM) package. With the New Competition Tool (see our June edition) and the Market Definition Notice two more projects have now been added.

The current Market Definition Notice dates back to 1997. Market definition generally entails two aspects: the product market and the geographical market. The objective of defining the relevant market is to identify the actual and potential competitors that have the capacity to constrain the commercial decisions of undertakings. Market definition is key in both antitrust cases (article 101 and 102 TFEU) and merger control review as it allows calculating market shares and assessing market power.

The Market Definition Notice provides guidance on the principles and best practices of how the Commission applies the concept of relevant product and geographic market in its enforcement practice. However, since 1997 certain market developments such as globalization and digitalization have happened that were not envisaged originally (on the current scale).

The consultation's main aim is to assess whether the Notice requires updating. The Commission is seeking input from both public and private stakeholders. The deadline to respond to the consultation is 9 October 2020, results will be published in 2021. The consultation takes the form of a questionnaire probing for the experience stakeholders have with the Notice in practice, shedding light on any difficulties, inconsistencies and gaps. Further, the Commission also asks stakeholders to identify points of continuity that have not changed since 1997 and major trends and developments that are not yet reflected in the Notice. The main update that is generally considered to be necessary is a methodology for digital markets. Nevertheless, the Commission is also open to other suggestions.

The consultation can be found here.

Bird & Bird is happy to assist your company in responding to this consultation. Do not hesitate to reach out to your local competition contacts for assistance.

For more information contact Anne Federle and Pauline Van Sande