Relevant Market - Digital Challenges

Abstract

Market definition is a specific and important tool used in European competition enforcement practice to identify boundaries of competition between undertakings; it is used both in antitrust and merger cases. The EU Market Definition Notice was adopted in 1997 in conditions of conventional markets with relatively stable market structures. With respect to recent development, especially digitalisation and globalisation of economy, the Commission launched the process of evaluation of the Notice in March 2020, and the revised notice has to be published in Q3 2023. Having in mind profound changes challenging various aspects of the original market definition, the article lists at first the most important features of digital economy, especially importance of innovation conditioning rapid changes of the market. Regarding the fact that the main principles of market definition were confirmed as sound until now, the short characteristics of the relevant market follow. The core part of the article aims to present and discuss different approaches to market definition, methods of market assessment included, taking into account the corresponding case law and legal writings reflecting digital circumstances making markets interconnected like never before. The article confronts also sometimes differing opinions of theory and practice in approach to market definition. Analysis is carried out with the ambition to find out whether it is possible – based on case specific approach of competition authorities – to draw general conclusions necessary for coherent conception of the revised market definition, or at least unifying recommendations for the legal practice for the sake of legal certainty. Outcomes of the analysis are summarised in the conclusion, in context with the draft market definition notice.

Keywords

• Competition
• Relevant Market
• Digitalisation
• Digital Platforms
• Zero Price Market
• Test for Market Definition