ERT Expert Paper on the review of Market Definition
Market Definition Notice review
The review of the 1997 Market Definition Notice is a timely initiative, especially because the pace of change in many markets has accelerated rapidly in recent years.
ERT encourages the Commission to develop a framework that: (i) provides legal certainty to businesses, (ii) clarifies the precedent value of market definitions in EU Merger Regulation (‘EUMR’) cases for the antitrust self-assessment under Articles 101 (vertical or horizontal agreements) and 102 (in dominance scenarios) and (iii) includes practical examples.
If the view is that, in relation to certain conduct or business scenarios in the digital context in particular, the use of market definition is less important than a broader competitive assessment, such approach should be clearly explained, well-grounded in economic theory, and limited to specific cases, if at all.
Competitive pressure of EU or global markets or players should be taken into account also for the definition of local regions as a market. In addition, the market-definition framework should be consistent with other EU policies, in particular considering the current debate on ensuring a global level playing field.