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Market definition plays a critical role in EC competition law, as the first step of any investigation into the nature of competition in a given industry. While not an end in itself, the definition of the relevant market serves to identify those products and areas which effectively restrain the behavior of the firms of interest, so that those firms could not act independently within the market. However, the main challenge in this process is to outline which products should be included in the market, and which should be left outside its bounds. Whereas traditional market definitions highlighted product characteristics, functionality, and intended use as key provisions, modern competition law inquiries attempt to reformulate the market delineation exercise in more economic terms. This book strives for a greater harmony between law and economics in defining antitrust markets. To that end, it brings together a wide array of quantitative tests routinely utilized by European competition authorities, such as price correlation analysis or the analysis of trade flows, with more sophisticated quantitative measures, such as merger simulation models or critical loss analysis. Taken all together, the book proffers a comprehensive and protracted account of economic and empirical methods dominating the antitrust discourse to date, which carry the potential to revolutionize the quality of antitrust enforcement, its transparency, predictability, and the accuracy of its results. (Series: European Studies in Law and Economics - Vol. 9) Subject: European Law, Competition Law, Law and Economics]
Market definition plays a critical role in EC competition law, as the first step of any investigation into the nature of competition in a given industry. While not an end in itself, definition of the relevant market serves to identify those products and areas which effectively restrain the behaviour of the firms of interest, such that those firms cannot act independently within the market. However, the main challenge in this process is to outline which products should be included within the market, and which should be left outside its bounds. Whereas traditional market definitions highlight product characteristics, functionality and intended use as key provisions, modern competition-law inquiries attempt to reformulate the market delineation exercise in more economic terms. This book strives for a greater harmony between law and economics in defining antitrust markets.
Provides a clear, concise and practical overview of the key economic techniques and evidence employed in European merger control.
The maintenance of a fair, competitive market among member states is critical to the functioning of the EU economy. In this book, the first comprehensive, unifying view of market definition, Miguel Ferro adeptly explores the different economic-legal issues that arise in EU competition law.
In recent years, market definition has come under attack as an analytical tool of competition law. Scholars have increasingly questioned its usefulness and feasibility. That criticism comes into sharper relief in dynamic, innovation-driven markets, which do not correspond to the static markets on which the concept of the relevant market was modelled. This book explores that controversy from a comparative legal perspective, taking into account both EU competition and US antitrust law. It examines the manifold ways in which courts and competition authorities in the EU and US have factored innovation-related considerations into market delineation, covering: innovative product markets, product differentiation, future markets, issues going beyond market definition proper – such as innovation competition, innovation markets and potential competition –, intellectual property rights, innovative aftermarkets and multi-sided platforms. This book finds that going forward, the role of market definition in dynamic contexts needs to focus on its function of market characterisation rather than on the assessment of market power.
With the rise of digital platforms and the natural tendency of markets involving platforms to become concentrated, competition authorities and courts are more frequently in a position to investigate and decide merger and abuse cases that involve platforms. This report provides guidance on how to define markets and on how to assess market power when dealing with two-sided platforms. DEFINITION Competition authorities and courts are well advised to uniformly use a multi-markets approach when defining markets in the context of two-sided platforms. The multi-markets approach is the more flexible instrument compared to the competing single-market approach that defines a single market for both sides of a platform, as the former naturally accounts for different substitution possibilities by the user groups on the two sides of the platform. While one might think of conditions under which a single-market approach could be feasible, the necessary conditions are so severe that it would only be applicable under rare circumstances. To fully appreciate business activities in platform markets from a competition law point of view, and to do justice to competition law’s purpose, which is to protect consumer welfare, the legal concept of a “market” should not be interpreted as requiring a price to be paid by one party to the other. It is not sufficient to consider the activities on the “unpaid side” of the platform only indirectly by way of including them in the competition law analysis of the “paid side” of the platform. Such an approach would exclude certain activities and ensuing positive or negative effects on consumer welfare altogether from the radar of competition law. Instead, competition practice should recognize straightforwardly that there can be “markets” for products offered free of charge, i.e. without monetary consideration by those who receive the product. ASSESSMENT The application of competition law often requires an assessment of market power. Using market shares as indicators of market power, in addition to all the difficulties in standard markets, raises further issues for two-sided platforms. When calculating revenue shares, the only reasonable option is to use the sum of revenues on all sides of the platform. Then, such shares should not be interpreted as market shares as they are aggregated over two interdependent markets. Large revenue shares appear to be a meaningful indicator of market power if all undertakings under consideration serve the same sides. However, they are often not meaningful if undertakings active in the relevant markets follow different business models. Given potentially strong cross-group external effects, market shares are less apt in the context of two-sided platforms to indicate market power (or the lack of it). Barriers to entry are at the core of persistent market power and, thus, the entrenchment of incumbent platforms. They deserve careful examination by competition authorities. Barriers to entry may arise due to users’ coordination failure in the presence of network effect. On two-sided platforms, users on both sides of the market have to coordinate their expectations. Barriers to entry are more likely to be present if an industry does not attract new users and if it does not undergo major technological change. Switching costs and network effects may go hand in hand: consumer switching costs sometimes depend on the number of platform users and, in this case, barriers to entry from consumer switching costs increase with platform size. Since market power is related to barriers to entry, the absence of entry attempts may be seen as an indication of market power. However, entry threats may arise from firms offering quite different services, as long as they provide a new home for users’ attention and needs.
The determination of market power of a firm or a group of firms and the prevention of its negative effect on the other market participants requires a previous definition of the relevant market. The relevant market represents a group of products or geographical areas that render it impossible for a potential monopolist or a group of companies to profitably raise the price of a product and in such a manner show their market power. There are numerous approaches that may be used when defining relevant market. The competition policy decision makers should be well acquainted with the benefits and the drawbacks of each concept in order to be able to bring proper competition policy decisions. The competition law most frequently uses the concept of interchangeability of supply and demand to define a market, whereby a market is defined on the basis of a hypothetical monopolist test. An accurate definition of the market requires, through the application of the mentioned test, the parallel analysis of specific factors such as: the characteristics of the product, the method of use and the preferences of the consumers, the costs of transport, the existence of primary and secondary markets, the market asymmetry and consistency of market definitions over time.