Product Substitutability in Defining the Relevant Market and Expert Evidence: Comments on the Judgment of the Polish Supreme Court of 29 July 2020 (I NSK 8/19)

Abstract

In one of the court proceedings concerning a cassation appeal, brought against the decision of the President of the Office of Competition and Consumer Protection (UOKiK), the Polish Supreme Court expressed in its judgment of 29 July 2020 (I NSK 8/19) a view on the role of expert evidence in the definition of the relevant market, and more specifically, in the determination of product substitutability. By dismissing the corporate applicant’s cassation appeal, the Court stated that admission of expert evidence was not necessary, given that the substitutability of products is decided mainly by customer adoption and not their chemical composition. This article aims to present the arguments cited to this end by the Supreme Court and to analyze them through the prism of defining the relevant market and the specificity of expert evidence in determining the boundaries of the relevant market for the purposes of applying competition law.

Keywords

• relevant market
• relevant product market
• substitutability
• expert evidence
• court proceedings