COMMISSION STAFF WORKING DOCUMENT EVALUATION of the Commission Notice on the definition of relevant market for the purposes of Community competition law of 9 December 1997
Date: 2021-07-12
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, administrative transparency, competition, competition law, economic concentration, restriction on competition, restrictive trade practice, single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 12.7.2021  SWD(2021) 199 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION  of the     Commission Notice on the definition of relevant market for the purposes of Community competition law of 9 December 1997         {SEC(2021) 295 final} - {SWD(2021) 200 final}  
 
 
CONTENTS 

1. 

INTRODUCTION ....................................................................................................... 1 

1.1.  Purpose of the evaluation ..................................................................................... 2 

1.2.  Scope of the evaluation ........................................................................................ 3 

2.  BACKGROUND TO THE INTERVENTION ........................................................... 3 

2.1.  The competition policy framework ...................................................................... 3 

2.2.  The role of market definition in antitrust and merger enforcement ..................... 4 

2.3.  The Notice and its intervention logic ................................................................... 8 

2.4.  Market developments and evolutions in competition assessments since 1997 . 13 

2.5.  Evaluation baseline ............................................................................................ 15 

3. 

IMPLEMENTATION / STATE OF PLAY .............................................................. 16 

4.  METHODOLOGY .................................................................................................... 17 

4.1.  Description and use of the sources of evidence ................................................. 18 

4.2.  Processing and triangulation of the evidence collected ..................................... 22 

4.3.  Limitations of the analysis ................................................................................. 23 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS ................ 24 

5.1.  Relevance ........................................................................................................... 24 

5.2.  Effectiveness ...................................................................................................... 30 

5.2.1.  Role of market definition ................................................................................... 32 

5.2.2.  Definitions and basic principles of assessing substitutability ............................ 35 

5.2.3.  Evidence to define markets ................................................................................ 45 

5.2.4.  Market shares ..................................................................................................... 49 

5.2.5.  Additional considerations .................................................................................. 51 

5.3.  Efficiency ........................................................................................................... 57 

5.4.  Coherence .......................................................................................................... 60 

5.5.  EU added value .................................................................................................. 64 

6.  CONCLUSIONS  ...................................................................................................... 66 

ANNEX 1: PROCEDURAL INFORMATION ................................................................ 70 

1.1.  Lead DG, Decide Planning/CWP references ..................................................... 70 

1.2.  Organisation and timing..................................................................................... 70 

 
 
 
 
 
1.3.  External evaluation support study...................................................................... 71 

1.4.  Consultation of the Regulatory Scrutiny Board ................................................. 72 

1.5.  Other evidence, sources and quality .................................................................. 73 

ANNEX 2: STAKEHOLDER CONSULTATION ........................................................... 75 

2.1.  The stakeholder engagement strategy ................................................................ 75 

2.2.  Consultation activities........................................................................................ 75 

2.2.1.  Consultation on the evaluation roadmap ........................................................... 75 

2.2.2.  Open public consultation ................................................................................... 76 

2.2.3.  Summary of the targeted consultation of national competition authorities ....... 79 

2.2.4.  Summary of targeted stakeholder workshops .................................................... 82 

ANNEX 3: METHODS AND ANALYTICAL MODELS ............................................... 85 

ANNEX 4: SUMMARY OF COSTS AND BENEFITS .................................................. 87 

 
 
Glossary 

Term or acronym 

Meaning or definition 

CJEU 

Court  of  Justice  of  the  European  Union,  also  referred  to 
as ‘the Court’  and, together with the General Court, ‘the 
EU Courts 

Commission 

European Commission 

Council Regulation 1/2003 

DG Competition 

Digital Markets Act 

Council  Regulation  (EC)  No  1/2003  of  16  December 
2002  on  the  implementation  of  the  rules  on  competition 
laid  down  in  Articles  81  and  82  of  the  Treaty  on  the 
Functioning of the European Union, OJ L 1, 4.3.2003, p. 
1 

Directorate-General  for  Competition  of  the  European 
Commission  

Proposal for a Regulation of the European Parliament and 
of  the  Council  on  contestable  and  fair  markets  in  the 
digital sector, COM/2020/842 final 

ECN 

EEA 

European Competition Network 

European Economic Area 

EEA Agreement 

Agreement on the European Economic Area 

EFTA 

EU 

EUR 

GDP 

European Free Trade Association 

European Union  

Euro 

Gross domestic product  

Horizontal Block Exemption 
Regulations 

No 

1217/2010 

Regulation 

of 
Commission 
14 December 2010 on the application of Article 101(3) of 
the  Treaty  on  the  functioning  of  the  European  Union  to 
categories of research and development agreements, OJ L 
335,  18.12.2010,  p.  36  (‘Commission  Regulation  No 
2017/2010’); and Commission Regulation No 1218/2010 
of 14 December 2010 on the application of Article 101(3) 
of  the  Treaty  to  categories  of  specialisation  agreements, 
OJ L 335, 18.12.2010, p. 43 (‘Commission Regulation No 
1218/2010’). 

 
 
 
 
Horizontal Cooperation 
Guidelines 

Guidelines  on  the  applicability  of  Article  101  of  the 
Treaty  on  the  Functioning  of  the  European  Union  to 
horizontal co-operation agreements, OJ C11, 14.1.20111, 
p. 1 

Horizontal Merger Guidelines   Guidelines on the assessment of horizontal mergers under 
the  Council  Regulation  on  the  control  of  concentrations 
between undertakings, OJ C31, 5.2.2004, p.5  

ICN 

International Competition Network  

Merger Regulation 

Council  Regulation  (EC)  No  139/2004  on  the  control  of 
concentrations between undertakings (OJ L24, 28.1.2004, 
p. 1), also referred to as the ‘EU Merger Regulation’ 

NCA 

National competition authority in the EEA 

Non-Horizontal Merger 
Guidelines  

Notice 

OECD 

R&D 

SSNDQ 

SSNIC 

SSNIP 

the  Council  Regulation  on 

Guidelines  on  the  assessment  of  non-horizontal  mergers 
under 
the  control  of 
concentrations  between  undertakings,  OJ  C  265  of 
18.10.2008, p. 6 

Commission  Notice  on  the  definition  of  relevant  market 
for  the  purposes  of  Community  competition  law  (OJ  C 
372, 9.12.1997, p. 5), also referred to as the ‘the Notice’ 

Organisation 
Development 

for 

Economic  Co-operation 

and 

Research and development 

Small but significant non-transitory decrease in quality 

Small but significant non-transitory increase in cost 

Small but significant non-transitory increase in price 

Summary of the NCA 
consultation 

Summary of the replies received to the NCA consultation 
carried out during the evaluation 

Summary of the public 
consultation 

Summary  of  the  replies  received  to  the  open  public 
consultation carried out during the evaluation 

Support study 

External  evaluation  support  study  on  the  review  of  the 
Market  Definition  Notice  by  a  consortium  led  by  VVA 
Brussels,  which  includes  Grimaldi  Studio  Legale,  LE 
für 
Europe, 
Wirtschaftsforschung and WIK-Consult 

Österreichisches 

Institut 

Technology Transfer 
Guidelines  

Communication  from  the  Commission  —  Guidelines  on 
the  application  of  Article  101  of  the  Treaty  on  the 
Functioning of the European Union to technology transfer 

4 

 
TFEU 

UK 

US 

Vertical Block Exemption 
Regulation and its 
accompanying Guidelines 

agreements, OJ C 89, 28.3.2014, p. 3 

Treaty on the Functioning of the European Union 

United Kingdom 

United States of America 

Commission  Regulation  330/2010  of  20  April  2010  on 
the  application  of  Article  101(3)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  to  categories  of 
vertical 
practices.  
and 
OJ  L  102,  23.4.2010,  p.1  and  Commission  notice  - 
Guidelines on Vertical Restraints, SEC/2010/0411 final  

agreements 

concerted 

5 

 
1.  INTRODUCTION  

The European Union (‘EU’) antitrust and merger rules protect and foster competition in 
the  internal  market  to  the  benefit  of  consumers  by  prohibiting  anti-competitive 
agreements  and  the  abuse  of  a  dominant  position.  They  also  grant  the  European 
Commission  (‘Commission’)  the  power  to  prohibit  mergers  that  would  lead  to  a 
significant impediment to effective competition. The rules are set out in Articles 101 and 
102  of  the  Treaty  on  the  Functioning  of  the  European  Union  (‘TFEU’)  and  in  the  EU 
Merger Regulation1, as well as in their accompanying regulations, guidelines and notices.  

Market  definition  is  a  tool  the  Commission  uses  in  its  enforcement  of  those  rules  to 
identify the boundaries of competition between companies. The Commission uses market 
definition in particular in cases where the assessment of market power is relevant for the 
competitive  assessment.  It  enables  the  Commission  to  identify  the  competitive 
constraints  that  may  limit  the  economic  behaviour  of  investigated  companies  and  to 
calculate  market  shares  which  provide  a  preliminary  indication  of  companies’  market 
power.  

Market definition is a well-established concept in competition law and is used widely by 
competition  authorities  internationally 2 .  The  common  starting  point  for  competition 
authorities in market definition is the customer; this means assessing which alternatives 
the customer has available to satisfy the same need. In that sense, market definition goes 
to the core of competition assessments by analysing the customers’ ability to switch from 
one  product/area  to  another  in  order  to  preserve  choice  and  by  making  it  possible  to 
identify and measure companies’ market power. 

In 1997, the Commission published its Notice on the relevant market for the purposes of 
Community  competition  law  (‘the  Notice’)3.  The  Notice  has  remained  unchanged  since 
then.  Its  purpose  was  to  increase  the  transparency  of  Commission  policy  and  decision-
making  in  the  area  of  competition  law  by  rendering  public  the  procedures  the 
Commission  follows  when  considering  market  definition  and  by  indicating  the  criteria 
and evidence on which it relies to reach a decision on market definition4. 

1   Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, OJ L24, 

28.1.2004, page 1 (‘EU Merger Regulation’ or ‘Merger Regulation’).  

2   Market definition is used as a starting point for the assessment carried out by all competition authorities 
in the  European Economic  Area (‘EEA’) and, among others, the non-EEA authorities included in the 
support study (i.e. Australia, Brazil, Canada, Japan, South Korea, the United Kingdom (‘the UK’) and 
the  United States of  America (‘the  US’)). See External evaluation support study on the review of the 
Market Definition Notice (‘support study’). 

3   OJ C 372, 9.12.1997, pp. 5-13. 
4   Paragraph 4 of the Notice. 

1 

 
 
                                                 
1.1. Purpose of the evaluation 

The purpose of the evaluation is to assess the evidence gathered on the functioning of the 
Notice, which will serve as a basis for the Commission to decide whether it should repeal 
it, leave it unchanged or revise it. 

The evaluation of the Notice is part of a broader Commission effort to make sure that EU 
competition policy and rules are fit for the modern economy5. The Notice has remained 
unchanged  for more than 23  years,  although the issues arising in  market definition and 
the  techniques  used  to  address  them  have  evolved.  Since  1997,  the  Commission  has 
gained  significant  experience  in  using  market  definition  in  its  competition  law 
assessments  by  adopting  a  large  number  of  decisions  containing  a  market  definition 
analysis. Furthermore, the EU Courts have interpreted the competition rules with respect 
to  market  definition  in  their  judgments.  Similarly,  there  have  been  decisions  and 
judgments  adopted  by  the  national  competition  authorities  of  the  EU  Member  States 
(‘NCAs’) and courts in the Member States that could inform the Commission’s approach. 
Moreover,  academic  research  since  1997  has  analysed  approaches  to  market  definition 
and  contributed  to  discussions  about  the  market  definition  tool  and  its  application  in 
practice,  as  have  international  forums  such  as  the  Organisation  for  Economic  Co-
operation  and  Development  (‘OECD’)  and  the  International  Competition  Network 
(‘ICN’). 

In  accordance  with 
Guidelines,6 the evaluation examines whether:  

the  principles  underlying  Commission’s  Better  Regulation 

- 
- 
- 

- 

- 

the objectives of the Notice continue to be appropriate (relevance);  
the Notice has met its objectives during the period of its application (effectiveness);  
the  net  benefits  associated  with  the  guidance  described  in  the  Notice  have  been 
positive (efficiency);  
the different components set out in the Notice operate well together and the Notice is 
consistent  with  other  antitrust  and  merger  guidance,  the  EU  Courts’  case-law  and 
other EU policies (coherence); and 
the Notice, as soft law at EU level, has provided added value (EU added value). 

5   Mission  letter  of  Executive  Vice-President  Vestager  of  1  December  2019.  The  relevant  initiatives 
include,  but  are  not  limited  to,  the  reviews  of  the  Vertical,  Horizontal,  Motor  Vehicle  and  Consortia 
Block  Exemption  Regulations  relating  to  the  application  of  Article  101  TFEU  and  the  Evaluation  of 
procedural  and  jurisdictional  aspects  of  EU  merger  control  and  its  follow-up  projects,  namely  the 
Guidance on Article 22 referrals as well as the impact assessment on the revision of certain procedural 
aspects of EU merger control. They also include new initiatives such as the  proposal for a Regulation 
for  a  Digital  Markets  Act  and  a  potential  new  instrument  to  address  distortions  caused  by  foreign 
subsidies in the internal market.  

6   Commission  staff  working  document,  Better  Regulation  Guidelines,  Brussels,  7  July  2017,  SWD 

(2017) 350. 

2 

 
                                                 
1.2. Scope of the evaluation 

The  substantive  scope  of  the  evaluation  includes  the  Notice  in  its  entirety.  The 
geographic  scope  extends  to  all  EU  Member  States  because  the  EU  competition  rules 
under Articles 101 and 102 TFEU and of the Merger Regulation are directly applicable in 
all EU Member States. EU competition rules – including the Notice – are also applicable 
in  the  three  European  Free  Trade  Association  (‘EFTA’)  States  (Iceland,  Liechtenstein 
and Norway). 

The Notice is binding on the Commission. The Notice does not bind NCAs or national 
courts, but  they may take it into account  when defining the  relevant  market  in  national 
competition proceedings. Against this background, the evaluation of the Notice includes 
analysis not only of the Commission’s decisional practice but also of the NCAs, as well 
as relevant national court case law, including that of the three EFTA States. 

The temporal scope of the evaluation includes the 23  years since the publication of the 
Notice in  December 1997 with  a focus on the last 10  years of EU antitrust  and merger 
enforcement as those are the most informative in assessing whether the Notice provides 
up-to-date guidance. 

2.  BACKGROUND TO THE INTERVENTION  

The  following  sections  provide  an  overview  of  the  EU  competition  policy  framework 
(Section 2.1) and of the role of market definition within it (Section 2.2), a description of 
the Notice and its intervention logic (Section 2.3), a short overview of the most important 
market  developments  and evolution  in  competition  assessments since 1997 relevant  for 
market  definition  (Section  2.4)  and  a  presentation  of  the  evaluation  baseline  (Section 
2.5). 

2.1. The competition policy framework7  

The purpose of the EU antitrust and merger rules enshrined in the TFEU, secondary EU 
law  and  soft  law  is  to  prevent  distortions  of  competition  in  the  EU  to  the  detriment  of 
consumers,  thereby  contributing  to  an  integrated  internal  market,  balanced  economic 
growth and a highly competitive social market economy for the sustainable development 
of Europe8.  

a)  Article  101(1)  TFEU  prohibits  agreements  between  undertakings,  decisions  by 
associations  of  undertakings  and  concerted  practices  which  may  affect  trade 

7  

In addition to antitrust and merger control, the third instrument of competition policy is state aid review 
pursuant  to  Articles  107-109  TFEU  and  the  related  regulations,  notices  and  guidelines.  As  set  out  in 
footnote  1  of  the  Notice,  the  focus  of  assessment  in  state  aid  cases  is  the  aid  recipient  and  the 
industry/sector  concerned,  rather  than  the  identification  of  competitive  constraints  faced  by  the  aid 
recipient. Due to the limited relevance of market definition for most state aid assessments, those aspects 
will not be discussed further in this staff working document. That notwithstanding, when consideration 
of market power and therefore of the relevant market is raised in any particular case, elements of the 
approach outlined in the Notice might serve as a basis for the assessment of state aid cases as well. 

8   Cf. Article 3(3) of the Treaty on European Union and Article 3(1)(b) TFEU.  

3 

 
                                                 
between Member States and which have as their object or effect the prevention, 
restriction  or  distortion  of  competition.  As  an  exception  to  this  rule,  Article 
101(3) TFEU sets out that the prohibition contained in Article 101(1) TFEU may 
be declared inapplicable to agreements that are on balance efficiency-enhancing. 
The  Commission  has  adopted  various  block  exemption  regulations  defining 
categories of agreements that the Commission regards as normally satisfying the 
conditions laid down in Article 101(3) TFEU9. 

b)  Article 102 TFEU prohibits firms that hold a dominant position on a given market 
from  abusing  that  position,  for  example  by  charging  unfair  prices,  by  limiting 
production, or by refusing to innovate to the prejudice of consumers.  

c)  The  EU  Merger  Regulation  imposes  a  notification  obligation  on  the  merging 
parties  for  concentrations  with  an  EU  dimension  and  grants  the  Commission 
exclusive  jurisdiction  to  review  them.  Under  the  EU  Merger  Regulation’s 
substantive  test,  the  Commission  assesses  whether  the  concentration  would 
significantly  impede  effective  competition  in  the  internal  market  or  in  a 
substantial part of it, in particular as a result of the creation or strengthening of a 
dominant position.  

2.2. The role of market definition in antitrust and merger enforcement 

Market  definition  is  used  both  in  the  Commission’s  antitrust  enforcement  pursuant  to 
Articles 101 and 102 TFEU and in the Commission’s merger control enforcement under 
the EU Merger Regulation.  

The  concept  of  relevant  market  is  used  to  identify  and  define  the  boundaries  of 
competition  between firms.  The main purpose is to  identify the  competitive constraints 
that  the  undertakings  involved  face  by  identifying  their  actual  competitors  that  are 
capable of constraining their behaviour. Furthermore, market definition makes it possible 
to have a reference point for measuring market power. In particular, it makes it possible 
to calculate the market shares of the undertakings involved – as well as of other market 
participants – which provides a preliminary indication of their market power.  

There  are  a  number  of  principles  of  market  definition  that  are  useful  to  underline  to 
provide context to the evaluation of the Notice.  

First,  market  definition  is  based  on  evidence  and  relies  on  established  economic 
principles. The Commission is bound by the facts of the case. Judicial review by the EU 
Courts ensures that the Commission follows these principles.  

Second,  according  to  the  EU  Courts’  case  law,  the  definition  of  the  relevant  market 
involves  defining  both  the  product  market  and  the  geographic  market10.  The  relevant 

9   Full list available here: https://ec.europa.eu/competition/antitrust/legislation/legislation.html.  
10   Judgment  of  14  February  1978,  United  Brands  Company  and  United  Brands  Continental  BV  v 
Commission, Case 27/76, EU:C:1978:22, paragraph 10 (‘Case 27/76,  United Brands  v Commission’). 
While not using similarly formulated language, the Court had already some years earlier explained that 

4 

 
                                                 
 
product  market  comprises  all  products  or  services  regarded  as  interchangeable  or 
substitutable  by  the  consumer,  by  reason  of  the  products’  characteristics,  prices  and 
intended  use 11 .  The  relevant  geographic  market  comprises  the  area  in  which  the 
conditions of competition are sufficiently homogeneous and which can be distinguished 
from other areas because the conditions of competition are appreciably different in those 
areas12. That definition of the geographic market is also codified, inter alia, in Article 9(7) 
of the EU Merger Regulation.  

Third,  market  definition  is  a  tool  that  the  Commission  uses  in  most,  but  not  all 
competition  assessments.  The  necessity  of  defining  markets  is  a  pre-condition  for 
assessing  dominance  under  Article  102  TFEU  as  well  as  an  essential  part  of  the  EU 
merger control regime. It can also be relevant for the assessment of certain infringements 
under  Article  101  TFEU.  According  to  the  EU  Courts,  the  definition  of  the  relevant 
market is, as a general rule, a prerequisite for any assessment of whether the undertaking 
concerned  holds  a  dominant  position.  This  is  because  it  defines  the  boundaries  within 
which an assessment must be made as to whether that undertaking is able to behave to an 
appreciable  extent  independently  of  its  competitors,  customers  and  consumers 13 . 
Similarly, as regards merger control, the EU Courts have found that ‘according to settled 
case-law, a proper definition  of the relevant  market  is  a necessary precondition  for any 
assessment  of  the  effect  of  a  concentration  on  competition’ 14.  Furthermore,  the  EU 
Courts have held that there is an obligation on the Commission to define the market in a 
decision applying Article 101 TFEU where it is impossible, without such a definition, to 

a market definition was necessary to assess dominance and alluded to such market definition consisting 
of a product and geographic market, see Judgment of 21 February 1973, Europemballage Corporation 
and  Continental  Can  Company  v  Commission,  Case  6/72,  EU:C:1973:22,  paragraphs  29–35  (‘Case 
6/72, Continental Can v Commission’).  

11   This was confirmed, for instance, in the judgment of 27 January 2021,  KPN v Commission, T-691/18, 
EU:T:2021:43 (‘T-691/18, KPN v Commission’), paragraph 67. In one of its earlier judgments, in Case 
27/76, United Brand v Commission, paragraph 12, the Court of Justice of the European Union (‘CJEU’) 
stated: ‘As far as the product market is concerned it is first of all necessary to ascertain whether, as the 
applicant maintains, bananas are an integral part of the fresh fruit market, because they are reasonably 
interchangeable  by  consumers  with  other  kinds  of  fresh  fruit  […]  or  whether  the  relevant  market 
consists solely of the banana market which includes both branded bananas and unlabelled bananas and 
is a market sufficiently homogenous and distinct from the market of other fresh fruit.’ 

12   This  was  confirmed,  for  instance,  in  the  judgment  of  5  October  2020,  HeidelbergCement  AG  and 
Schwenk  Zement  KG  v  Commission,  T-380/17,  EU:T:2020:471  (‘T-380/17,  HeidelbergCement  and 
Schwenk Zement v Commission’), paragraph 294. In one of its earlier judgments in Case 27/76, United 
Brands v Commission, paragraph 11, the CJEU stated: ‘The opportunities for competition under Article 
86 of the Treaty must be considered having regard to the particular features of the product in question 
and  with  reference  to  a  clearly  defined  geographic  area  in  which  it  is  marketed  and  where  the 
conditions  of  competition  are  sufficiently  homogeneous  for  the  effect  of  the  economic  power  of  the 
undertaking concerned to be able to be evaluated.’ 

13   Judgment  of  9  November  1983,  NV  Nederlandsche  Banden  Industrie  Michelin  v  Commission,  Case 

322/81, EU:C:1983:313 (‘Case 322/81, Michelin v Commission’), paragraph 37.  

14   Judgment  of  28  May  2020,  CK  Telecoms  UK  Investments  Ltd  v  Commission,  T-399/16, 
EU:T:2020:217,  paragraph  144;  judgment  of  7  June  2013,  Spar  Österreichische  Warenhandels  v 
Commission,  T-405/08,  EU:T:2013:306,  paragraph 116;  and  judgment  of  31  March  1998,  French 
Republic  and  Société  commerciale  des  potasses  et  de  l'azote  (SCPA)  and  Entreprise  minière  et 
chimique (EMC) v Commission, C-68/94 and C-30/95, EU:C:1998:148, paragraph 143. 

5 

 
                                                                                                                                                 
 
determine whether the behaviour at issue is liable to affect trade between Member States 
and  has  as  its  object  or  effect  the  prevention,  restriction  or  distortion  of  competition 
within  the  internal  market15.  In  practice,  market  definition  plays  less  of  a  role  in  cases 
under  Article  101  TFEU  where  the  behaviour  at  issue  has  as  its  object  the  prevention, 
restriction or distortion of competition, such as in cartel cases, in respect of which the EU 
Courts  have  ruled  that  it  is  not  necessary  for  the  Commission  to  define  the  relevant 
market16. 

Fourth,  where  the  Commission  uses  market  definition,  it  is  only  a  first  step  in  the 
assessment. Market definition is the starting point, but the Commission will only decide 
on whether or not competition concerns arise after having carried out the full competitive 
assessment.  It  is  only in the competitive assessment that the Commission compares the 
capabilities of the different competitors in detail and, importantly, assesses the presence 
of anti-competitive conduct or the likely effects of a merger. Market definition therefore 
does not preclude the outcome of the competitive assessment. 

For instance, to assess whether a merger would lead to competition concerns in situations 
where the activities of the two merging parties overlap, the Commission will usually first 
define the relevant  markets  for those overlapping  activities. Then, in  a second step, the 
Commission will carry out the competitive assessment, including by establishing:  

-  what the market structure will be after the merger in terms of number and strength 

of the available suppliers;  

-  whether the merging parties have been competing closely before the merger;  
-  whether customers have possibilities to switch supplier;  

15   Judgment  of  21  February  1995,  Vereniging  van  Samenwerkende  Prijsregelende  Organisaties  in  de 
Bouwnijverheid  and  others  v  Commission,  T-29/92,  EU:T:1995:34,  paragraph  74;  judgment  of  28 
February  2002,  Atlantic  Container  Line  AB  and  Others  v  Commission,  T-395/94,  EU:T:2002:49, 
paragraph  83;  judgment  of  6  July  2000,  Volkswagen  AG  v  Commission,  T-62/98,  EU:T:2000:180, 
paragraph  230;  judgment  of  15  March  2000,  Cimenteries  CBR  and  Others  v  Commission,  T-25/95, 
EU:T:2000:77,  paragraph  833;  judgment  of  28  February  2002,  Compagnie  générale  maritime  and 
Others  v  Commission,  T-86/95,  EU:T:2002:50,  paragraph  116;  judgment  of  19  March  2003,  CMA 
CGM and Others v  Commission, T-213/00, EU:T:2003:76, paragraph 206; judgment of 16 December 
2003,  Nederlandse  Federatieve  Vereniging  voor  de  Groothandel  op  Elektrotechnisch  Gebied  and 
Technische Unie BV v  Commission, T-5/00, EU:T:2003:342, paragraph 123; judgment of 25 October 
2005, Groupe Danone v Commission, T-38/02, EU:T:2005:367, paragraph 99; judgment of 6 December 
2005,  Brouwerij  Haacht  NV  v  Commission,  T-48/02,  EU:T:2005:436,  paragraph  58;  judgment  of  14 
December  2006,  Raiffeisen  Zentralbank  Österreich  AG  and  Others  v  Commission,  T-259/02, 
EU:T:2006:396, paragraph 172; judgment of 12 September 2007, William Prym GmbH & Co. KG and 
Prym Consumer GmbH & Co. KG v Commission, T-30/05, EU:T:2007:267, paragraph 86; judgment of 
16 June 2011, Ziegler SA v Commission, T-199/08, EU:T:2011:285, paragraph 45; judgment of 16 June 
2011,  Gosselin  Group  NV  v  Commission,  T-208/08,  EU:T:2011:287,  paragraph  91;  judgment  of 
16 September  2013,  Zucchetti  Rubinetteria  v  Commission,  T-396/10,  EU:T:2013:446,  paragraph  28; 
judgment of 27 February 2014, InnoLux Corp. v Commission, T-91/11, EU:T:2014:92, paragraph 129; 
judgment  of  11  December  2003,  Adriatica  di  Navigazione  SpA  v  Commission,  T-61/99, 
EU:T:2003:335, paragraph 27; judgment of 24 May 2012,  MasterCard and Others  v Commission, T-
111/08,  EU:T:2012:260,  paragraph  171;  judgment  of  28  June  2016,  Portugal  Telecom  SGPS,  SA  v 
Commission, T‑ 208/13, EU:T:2016:368, paragraph 175; judgment of 28 June 2016, Telefónica, SA v 
Commission, T-216/13, EU:T:2016:369, paragraph 213. 

16   Judgment of 28 June 2016, Telefónica, SA v Commission, T-216/13, EU:T:2016:369, paragraph 214. 

6 

 
                                                 
-  whether competitors are likely to increase supply if prices increase;  
-  whether the merged undertaking could hinder expansion by competitors;  
-  whether the merger would eliminate an important competitive force;  
-  whether market entry is expected; and  
-  whether customers have buyer power.  

Similarly, to assess whether an undertaking has abused its dominant market position, the 
Commission  will  usually  first  define  the  relevant  market,  then  assess  whether  the 
company under investigation holds a dominant position on that market, whether there has 
been an abuse of that dominant position and whether there is an objective justification for 
the conduct. 

Fifth,  market  definition  is  primarily  customer-centric  by  assessing  which  alternative 
products or services are available to the customer to satisfy the same need.17 This follows 
from the purpose of the competition rules, which is to protect competition to the benefit 
of customers and ultimately of EU consumers in general. As a consequence, the concept 
of  the  relevant  market  in  antitrust  and  merger  enforcement  is  different  from  the 
definitions  of  markets  used  in  other  contexts.  For  example,  global  companies  may 
consider that they compete globally for revenues against companies from all continents. 
That does not mean, however, that all those global companies offer products or services 
to customers in the EEA, which is the relevant perspective for the Commission’s antitrust 
and merger enforcement.  

Sixth,  the  Commission  carries  out  its  competition  assessments  taking  into  account  all 
competitive constraints. Market definition results in distinguishing between competitive 
constraints from  within  and from  outside the market,  depending on how  immediate the 
constraints  are  in  determining  whether  customers  can  switch  to  alternative  products  or 
services. However, the Commission also takes out-of-market constraints into account in 
the competitive assessment. For instance, two geographic areas A and B may be found to 
constitute  different  geographic  markets  for  the  sale  of  a  certain  product  or  service 
because  the  conditions  of  competition  in  those  areas  are  appreciably  different.  When 
assessing whether a company holds market power in market A, the Commission will take 
into account all sales made in market A, including by imports such as from market B, and 
will also assess whether suppliers from other areas can expand their sales in market A by 
expanding total output or by reorienting sales from other areas, including from market B. 
In  other  words,  while  sales  in  market  A  constitute  in-market  constraints  and  sales  in 
market  B  constitute  out-of-market  constraints,  both  are  taken  into  account  in  the 
competitive assessment when assessing market power in market A.  

Seventh, market definition is driven by market realities. As a consequence, it differs from 
sector  to  sector  and  also  often  differs  at  the  different  levels  of  the  supply  chain.  For 
instance, the Commission has defined the market for the supply of cocoa beans – the raw 

17   This  is  without  prejudice  to  supply-side  substitution  that  may  be  taken  into  account  when  defining 
markets,  where  its  effects  are  equivalent  to  demand  substitution  in  terms  of  immediacy  and 
effectiveness. See paragraphs 13 and 20 of the Notice.   

7 

 
                                                 
material  for  chocolate  production  –  as  EEA-wide  or  global.  In  contrast,  the  supply  of 
industrial chocolate to producers of confectionery has been defined as regional within the 
EEA, while the sale of chocolate confectionery to retailers has been defined as national 
due  to  the  importance  of  national  brands  among  other  factors18.  The  different  market 
realities  in  various  sectors  can  be  further  illustrated  by  the  fact  that,  historically,  the 
Commission has defined a global market as one of the plausible markets in only 1 out of 
10 merger cases with affected markets in consumer goods. By contrast, in the automobile 
sector, that share almost doubles, while in the IT sector it constitutes nearly 50%19. 

Eighth, market definition is specific to the particular issue in dispute and the assessment 
carried  out.  A  company  may  compete  with  other  companies  at  different  levels  and/or 
based on different variables. For example, if the Commission analyses innovation effects 
in a merger case, the market definition may differ from a situation where the Commission 
analyses price effects in an antitrust case in the same industry or with respect to the same 
economic activity. 

Ninth, the Commission looks at the facts and the evidence in each case afresh and defines 
the  relevant  markets  accordingly.  This  means  that  market  definitions  may  evolve  over 
time:  if  the  market  dynamics  change,  the  market  definitions  will  also  change.  If  for 
instance,  there  are  more  consumers  today  who  take  purchasing  decisions  based  on 
whether  products  are  sustainable  or  not,  the  market  definition  may  reflect  a  potential 
definition of markets for sustainable products on the one hand and conventional products 
on the other hand20. 

Tenth, the tools used by the Commission to define markets may equally evolve over time 
in line with the availability of evidence, such as data or internal company documents, and 
in line with developments in techniques to analyse the substitution possibilities available 
to customers.  

2.3. The Notice and its intervention logic 

The  Notice  provides  guidance  on  how  the  Commission  applies  the  concept  of  relevant 
product  and  geographic  market  in  its  enforcement  of  EU  antitrust  and  merger  law.  It 
codifies the Commission’s past practice as well as guidance provided by the EU Courts, 
based on established economic and legal principles. 

After  setting  out  the  elements  underlying  the  definition  of  the  relevant  product  and 
geographic market as established by the EU Courts, the Notice explains that there are two 
types of competitive constraints to be considered at the market definition stage. First, the 
is  demand-side 
most 
substitution, where the customers are in a position to switch easily to available substitute 
products or services or to suppliers located elsewhere. Second, supply-side substitution 

immediate  and  effective  disciplinary  force  on  suppliers 

18   M.  7510  –  Olam/ADM  Cocoa  Business,  M.7408  –  Cargill/ADM  Chocolate  Business  and  M.5644  – 

Kraft Foods/Cadbury. 

19   Covering merger decisions for the period 1992-2015. 
20   Examples for such assessments can be found in M.8829 – Total Produce/Dole Food Company, M.7220 

– Chiquita Brands International/Fyffes and M.7510 – Olam/ADM Cocoa Business.  

8 

 
                                                 
may be taken into account if its effects are equivalent to those of demand substitution in 
terms  of  effectiveness  and  immediacy  because  most  suppliers  are  able  to  switch  their 
sales  to  the  relevant  products  or  areas  and  market  them  in  the  short  term  without 
incurring significant additional costs or risk. In contrast, less effective or less immediate 
supply-side constraints are taken into account at the assessment stage of the competition 
analysis, for example in the context of potential competition. 

The  Notice  goes  on  to  describe  the  evidence  the  Commission  relies  on  to  define  the 
relevant  product  and  geographic  market  (Section  III  of  the  Notice),  explain  how  the 
Commission  calculates  market  shares  (Section  IV)  and  address  certain  selected 
constellations that raise specific market definition issues (Section V).  

Almost all elements of market definition set out in the Notice apply to both antitrust and 
merger assessments, with a few technical exceptions; this argues in favour of a common 
Notice for both instruments. The alternative of integrating market definition guidance in 
each of the antitrust and merger guidelines would instead result in repetition of guidance 
and could  reduce its broader value in  terms  of applications beyond competition law, as 
explained in Section 3. In addition, it is worth recalling that there is not just one single 
set  of  guidelines  within  each  of  the  instruments.  For  example,  in  mergers  there  are 
horizontal and non-horizontal guidelines, and in antitrust there are guidelines on Article 
101(3) and on Article 102 TFEU, as well as guidelines accompanying the different rules 
applicable to vertical and horizontal agreements. This poses the question of whether to: 
(i) include market definition guidance in each of these (creating duplications and leading 
to potentially conflicting interpretations given the different timelines of review applicable 
to  the  different  documents);  or  (ii)  have  a  separate  document  for  guidance  on  market 
definition  for  mergers  and  another  one  for  antitrust  (thus  remaining  separate  from  the 
guidelines on the substantive assessment). 

As set out in paragraphs 4 and 5 of the Notice, the Notice has the general objectives21 of 
increasing the transparency of the Commission’s policy and decision-making in EU 
antitrust  and  merger  enforcement22 and  of  helping  businesses  to  better  anticipate 
the possibility that the Commission may raise competition concerns in an individual 
case23. That is relevant, in particular, since the Commission uses market shares as a first 

21   See also XXVIIth Report on Competition Policy (1997), paragraph 44: ‘To improve the transparency of 
its  competition  policy,  both  for  business  and  the  legal  community,  the  Commission  adopted,  on  15 
October 1997, a notice on the relevant market for the purposes of Community competition law and in 
particular  of  Regulation  No  1726  and  Regulation  No  4064/89,27  the  Merger  Regulation.  Such 
clarification  is  evidence  of  the  Commission’s  willingness  to  increase  the  predictability  of  its  market 
analyses for practitioners of Community competition law.’ 

22   Paragraph 4 of the Notice: ‘By rendering public the procedures  which the Commission  follows  when 
considering market definition and by indicating the criteria and evidence on which it relies to reach a 
decision, the Commission expects to increase the transparency of its policy and decision-making in the 
area of competition policy.’ 

23   Paragraph  5  of  the  Notice:  ‘Increased  transparency  will  also  result  in  companies  and  their  advisers 
being able to better anticipate the possibility that the Commission may raise competition concerns in an 
individual case. Companies could, therefore, take such a possibility into account in their own internal 
decision-making  when  contemplating,  for  instance,  acquisitions,  the  creation  of  joint  ventures,  or  the 
establishment of certain agreements. It is also intended that companies should be in a better position to 

9 

 
                                                 
 
screening tool in certain instances to assess whether competition concerns may arise and 
to decide on the review process to follow. For example, market share thresholds are one 
of the elements determining the scope of the block exemption regulations for Article 101 
TFEU 24.  Similarly,  the  Commission  uses  market  share  thresholds  to  identify  merger 
cases  deemed  from  the  outset  not  to  raise  competition  concerns  that  can  therefore  be 
assessed under a simpler review procedure unless there are specific circumstances25. The 
transparency offered by the Notice was therefore expected to allow businesses to: (i) save 
internal  and  external  resources  in  relation  to  competition  assessments  (see  Sections  2.5 
and  5.3)  because  in  the  absence  of  the  Notice  businesses  would  have  to  solely  rely  on 
previous  practice  in  the  form  of  individual  cases,  on  court  guidance  and  on  economic 
principles,  and  (ii)  minimise  the  risk  of  arriving  at  incorrect  conclusions  as  to  the 
lawfulness of an agreement or practice when self-assessing their market share. 

that 

the  Notice  has 

It  follows 
the  specific  objective  of  providing  correct, 
comprehensive and clear guidance on the Commission’s approach to market definition 
in EU antitrust and merger law. Correct guidance adequately reflects the case law of the 
EU Courts, the best practices applied by the Commission and other leading competition 
authorities  as  well  as  the  mainstream  findings  of  high-quality  academic  research. 
Comprehensive  guidance  is  materially  complete  where  it  summarises  all  the  broad 
principles applicable to market definition as well as the main specific criteria applicable 
in  the  most  important  case  constellations.  Clear  guidance  is  easy  to  understand  and 
follow.  According  to  the  Commission’s  explanations  in  its  annual  report  of  1998 
following  the  publication  of  the  Notice,  ‘the  Notice  is  intended  to  be  as  empirical  as 
possible  and  is  based  on  the  Commission’s  previous  case  law.  It  tries  to  set  out  in 
coherent,  readable  fashion  the  economic  principles  on  which  the  Commission  bases  its 
approach to the definition of relevant markets’26.  

According to the guidance provided by the EU Courts, the Commission enjoys a certain 
degree of discretion as to how it shapes the content of the Notice and as regards the level 
of detail that it includes in it in particular. In striving to meet its objectives of providing 
correct,  comprehensive  and  clear  guidance,  the  Commission  aims  to  codify  robust  and 
tested best practices of market definition. In formulating such guidance, the Commission 
also faces certain trade-offs and risks. First, providing detailed guidance on specific case 
constellations  means  more  information  available  to  stakeholders  on  the  specific  topics, 
but also entails a higher risk that the Notice becomes obsolete more quickly and that it 
becomes  lengthy  and  less  user-friendly.  Second,  only  codifying  existing  Commission 

understand  what  sort  of  information  the  Commission  considers  relevant  for  the  purposes  of  market 
definition.’ 

24   The  market  share  thresholds  limit  the  applicability  of  the  safe  harbour  to  agreements  between 
businesses holding a share in the relevant market(s) that does not exceed the thresholds set out in the 
regulations,  cf.  Article  4  of  the  Commission  Regulation  No  1217/2010;  Article  3  of  the  Commission 
Regulation No 1218/210; recital 8 and Article 3 of the Commission Regulation No 330/2010.  

25   Cf.  Points  5  and  6  of  the  Commission  Notice  on  a  simplified  procedure  for  treatment  of  certain 

concentrations under Council Regulation (EC) No 139/2004, OJ 366, 14.12.2013, page 5.  

26   See XXVIIth Report on Competition Policy (1997), paragraph 44. 

10 

 
                                                                                                                                                 
 
practice has the advantage of ensuring that the Notice reflects tested approaches, but also 
entails the risk that it might not be suited for future developments. To best address those 
risks and trade-offs, as mentioned above the Commission aims to codify in the Notice the 
most important principles and most relevant case constellations based on the case-law of 
the  EU  Courts,  the  best  practices  applied  by  the  Commission  and  other  leading 
competition authorities, and the mainstream findings of high-quality academic research. 

11 

 
 
Figure 1: Intervention logic for the Market Definition Notice 

Needs 

Objectives 

 To carry out a 

market definition 
assessment to 
facilitate the 
enforcement of, and 
compliance with, 
the EU antitrust and 
merger rules for the 
benefit of 
consumers in the 
internal market. 

 To help the 

Commission and 
undertakings define 
the boundaries of 
competition by 
identifying the 
competitors of the 
undertakings 
involved, and to 
have a reference 
point for assessing 
market power. 

General objective  
 To increase the transparency 
of the Commission’s policy 
and decision-making in EU 
antitrust and merger 
enforcement. 

 To help businesses to better 
anticipate the possibility that 
the Commission may raise 
competition concerns in an 
individual case. 

Specific objectives 
 To provide correct, 

comprehensive and clear 
guidance on the 
Commission’s approach to 
market definition. 

External Factors 

Activities / 
Inputs 

 To define the 
concept of 
relevant market 
and to describe 
the basic 
principles for 
market 
definition. 

 To describe the 
evidence relied 
on. 

 To describe how 
market shares 
are calculated. 

 To address 

selected market 
definition 
constellations. 

Output 

Results 

Impacts 

 The 

Commission 
uses the 
Notice to 
guide its 
market 
definitions. 
 Businesses 

use the Notice 
as part of their 
assessment 
whether their 
business 
practices or 
mergers are 
likely to raise 
competition 
concerns. 

 The Commission 

and the 
stakeholders 
benefit from 
correct, 
comprehensive and 
clear guidance on 
market definition. 

 Increased 

transparency in EU 
antitrust and 
merger 
enforcement. 

 Improved 

anticipation of 
potential 
competition 
concerns by 
businesses in 
individual cases. 

Facilitate the 
enforcement 
of, and 
compliance 
with, the EU 
antitrust and 
merger rules 
to promote 
effective 
competition, 
for the benefit 
of consumers 
in the internal 
market. 

The guidance in the Notice can become incorrect, incomplete or unclear to apply in practice if it fails to reflect new 
guidance from the EU courts, changes in the Commission’s case practice and in the practice of other leading 
competition authorities, new findings of economic and legal research, new market trends and technological 
12 
developments. This can adversely affect the intervention’s impact. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2.4. Market developments and evolutions in competition assessments since 1997 

A  number  of  market  features  and  approaches  to  competition  assessments  have  evolved 
since  1997.  Five  of  these  deserve  particular  highlighting  by  way  of  background  to  the 
evaluation.  

First, while it is very challenging to estimate the precise share of the digital economy in 
overall  gross  domestic  product  (‘GDP’),  it  is  beyond  doubt  that  the  role  of  digital 
activities has been increasing27. Depending on the definition, the digital economy’s share 
reached  between  4.5%  and  15.5%  of  global  GDP  in  201928.  In  particular,  the  role  of 
online platforms is constantly increasing due to upward trends in  e-commerce of goods 
and services29. This has been strengthened further due to the wide-ranging introduction of 
lockdowns triggered by the COVID-19 pandemic in 2020, which incentivised consumers 
to  increase  further  their  use  of  search  engines,  social  media  and  online  entertainment 
media (e.g. video streaming, multi-player gaming, music and video streaming).  

Second, there is a high level of concentration of economic power in digital markets30 and 
beyond,  which  highlights  the  need  for  vigilance  in  competition  enforcement.  The  top 
seven  large  platforms  account  for  69%  of  the  total  EUR  6  trillion  valuation  of  the 
platform economy, as a result of vertical and horizontal integration31. Moreover, 5 out of 
the world’s 10 largest companies by market capitalisation are digital conglomerates (i.e. 
Apple, Microsoft, Amazon, Google and Facebook32). Market concentration is a trend not 
only in digital markets, as documented in particular for the US, but also for the EU, albeit 
to a more limited extent33. For instance, empirical studies suggest that company mark-ups 
across all sectors increased by  4% to  6% over the period 2001–2014 on average across 
country, with increases of 20% for the top 10% of firms in the sample34. 

27   See also Impact Assessment on the Digital Markets Act. 
28   UNCTAD (2019), Digital economy report.  
29   For  almost  10%  of  companies,  online  platform 

sales  exceed  75%  of  all 

revenues, 

https://platformobservatory.eu/state-of-play/power-over-users/.  

30   For  the  purpose  of  this  staff  working  document,  digital  markets  are  markets  where  products  and 

services are provided by means of or through information society services. 

31   See Expert Group for the Observatory on the Online Platform Economy, Work stream on Measurement 
&  Economic  Indicators  (2020).  Those  platforms  have  several  hundreds  of  millions  of  users  (both 
businesses and citizens/consumers) and the total net revenues of some of those platforms (of billions of 
euros) double and triple in recent years. 

32   Source: Statista. 
33   Bajgar,  M.,  Berlingieri,  G.,  Calligaris,  S.,  Criscuolo,  C.,  and  Timmis,  J.,  ‘Industry  Concentration  in 
Europe  and  North  America’,  OECD  Productivity  Working  Paper,  2019;  Grullon,  G.,  Larkin,  Y.,  and 
Michaely  R., ‘Are US Industries Becoming More  Concentrated?’,  Review of Finance, Volume 23(4), 
pp.  697–743,  2019;  ‘Market  Concentration’  –  Note  by  Jason  Furman,  Hearing  on  Market 
Concentration, 7 June 2018; Gutiérrez G., and Philippon, T., Declining Competition and Investment in 
the  U.S.,  2017;  Gutiérrez  G.,  and  Philippon  T.,  How  European  Markets  Became  Free:  A  Study  of 
Institutional Drift, 2018.  

34   See  Calligaris,  S.,  Criscuolo,  C.,  and  Marcolin  L.,  ‘Mark-ups  in  the  Digital  Era’,  OECD  Science, 
Technology  and  Industry  Working  Papers  2018/10,  2018.  See  also  De  Loecker,  J.,  and  Eeckhout,  J., 

13 

 
 
                                                 
 
Third, the last two decades have seen technological convergence, with the tendency for 
originally  unrelated  technologies,  products  and  services  to  become  more  closely 
integrated  and  even  unified  as  they  develop  and  advance.  For  example,  watches, 
telephones,  television,  computers  and  social  media  platforms  began  as  separate  and 
mostly unrelated technologies, products and services, but today form interrelated parts of 
a telecommunication and media industry, sharing common elements of digital electronics 
and  software35.  Companies  are  also  offering  more  integrated  products  (e.g.  bundles  of 
quadruple  play  in  telecommunications36 or  ‘ecosystems’37 built  around  mobile  operating 
systems  which  consist  of  a  smartphone,  operating  system  and  apps 38 ).  These 
developments  change 
individual 
the  nature  of  competition 
products/services that integrate those clustered offers. 

in  relation 

the 

to 

Fourth, there is an increasing societal awareness of innovation-related effects39. This may 
be at the origin of an increasing trend in competition authorities’ decisional practice and 
soft law. The trend consists in taking into account a spectrum of undertakings’ innovation 
efforts in order to define relevant markets and assess competitive effects more accurately 
where innovation plays a significant role40. In addition, authorities may find that concerns 
about  a negative impact  on innovation  are arising in  a greater proportion of merger (as 
well as antitrust) cases as digitisation affects a widening range of markets41. 

Fifth, economic integration of the countries of the world and within the EU has increased 
over the past decades. Trade data show that the proportion of external trade in the EU-27 
economy  has  almost  doubled  over  the  past  15  years 42.  Also,  mergers  notified  to  the 
Commission  are  increasingly  of  a  cross-border  nature43.  That  said,  these  trends  affect 
economic  activities  in  different  sectors  and  at  different  levels  of  the  supply  chain  in 
different  ways.  Several  types  of  markets  and  industries 44 have  not  been  significantly 

The Rise of Market Power and the Macroeconomic Implications, 2017. For the top 10% of the firms in 
the sample, the growth in mark-ups over the period 2001-2014 amounted to 20%. 

35   OECD (2016), Digital convergence and beyond. 
36   OECD (2015), Triple and Quadruple Play Bundles of Communication Services. 
37   Ecosystems  are  typically  characterised  by  a  primary  core  product  and  several  secondary  products 

whose complementarity is due to technological links or interoperability between products. 

38   Crémer, J., de Montjoye, Y., and Schweitzer H., ‘Competition Policy  for the Digital Era’,  Report for 

the European Commission, 2019. 

39   OECD (2018), Oslo Manual 2018, Guidelines for collecting, reporting and using data on innovation. 
40   See Section 4 of the support study. 
41   OECD (2018), Considering non-price effects in merger control–Background note by the Secretariat. 
42   See  DG  Trade  Statistical  Guide  2020  and  DG  Trade  Statistical  Pocket  Guide  2013.  These  sources 

combined provide a long-term timeline of trade for the period 2004-2019. 

43   The percentage of mergers notified to the Commission that involve non-EU companies increased from 
ca 36% to ca. 58% from 2004 to 2013, see DG Competition, ‘Market definition in a globalised world’, 
Competition policy brief, Issue 2015(12), 2015. 

44   Like  the  sale  of  consumer  products  that  rely  on  localised  demand  preferences  (as  in  Case  M.5046  –
Friesland/Campina, for instance; also see Fletcher, A., and Lyons, B., Geographic Market Definition in 
European  Commission  Merger  Control,  Centre  for  Competition  Policy,  Norwich,  2016),  or  markets 
where regulation imposes heterogeneous conditions of competition at local or national level, like in the 
telecommunications sector, see Case M.7758 – Hutchinson 3G Italy/Wind/JV, for instance. 

14 

 
                                                                                                                                                 
 
affected  by  globalisation  and  there  is  no  clear  evidence  that  they  might  be  in  the  near 
future.  The  general  development  for  more  market  integration  can  also  be  reversed 
through the introduction of trade barriers, for instance with the imposition of trade tariffs 
in  specific  sectors  or  the  increase  of  trade  barriers  across  sectors,  as  illustrated  by  the 
withdrawal of the UK from the EU and its internal market45. 

2.5. Evaluation baseline 

The baseline for comparison used in the evaluation depends on the evaluation criteria and 
related evaluation questions to be assessed.  

The  main  point  of  comparison  for  the  evaluation  is  the  hypothetical  situation  of  not 
having the Notice in place. This is in particular to assess its relevance (to assess whether 
the  objectives  are  still  pertinent  compared  to  a  situation  where  the  objectives  are  not 
being  pursued),  efficiency  (to  assess  whether  there  would  be  lower  costs  without  the 
Notice in place) and EU added value (to assess whether the objectives could have been 
achieved at national level).  

In  these  respects,  the  evaluation  therefore  looks  at  the  functioning  of  the  Notice  as 
compared to a situation in which market definition would have to be carried out without a 
dedicated  notice  at  EU  level  and  instead  only  in  light  of  other  Commission  guidance, 
relevant case-law at EU and national level, the enforcement practice of the Commission 
and  the  NCAs  and  academic  research.  In  both  merger  and  antitrust  matters,  this  would 
imply that the companies involved would have to dedicate additional internal resources 
to  researching  a  large  number  of  Commission  decisions  and  court  judgments  and 
possibly  also  literature  on  market  definition  to  determine  how  the  Commission  would 
likely define the relevant market(s) and what elements it would take into account. This is 
not a simple exercise given the large number of decisions and judgments assessing many 
different relevant markets. This implies that companies would also likely have to spend 
more  resources  on  consultancy  from  law  firms  and  economic  consultants  to  help  them 
find  the  most  relevant  decisions  and  interpret  them.  Furthermore,  in  particular  when 
companies need to determine whether they can benefit from an exemption to the antitrust 
rules,  without  the  Notice  they  would  face  a  higher  risk  of  arriving  at  an  incorrect 
conclusion  when  self-assessing  their  market  share.  This  is  because  market  shares  can 
only be calculated based on a given definition of the relevant market. 

A  second  point  of  comparison  is  the  situation  the  Commission  expected  to  have 
achieved, namely to have a Notice that continues to provide correct, comprehensive and 
clear guidance on market definition that is consistent with other Commission guidance, 
case-law and other policies. This  is  used for the  effectiveness and  coherence  analyses, 
which  assess  whether  the  objectives  of  the  Notice  are  currently  met  by  providing  the 
level of transparency envisaged in 1997 and whether there is coherence today.  

45   The recent COVID-19 crisis may also have had a contractionary impact on trade, although it is more 

likely to be transitory. 

15 

 
                                                 
3.  IMPLEMENTATION / STATE OF PLAY  

The  Commission  has  applied  the  guidance  set  out  in  the  Notice  in  a  large  number  of 
antitrust and merger investigations and decisions since 199746. As an instrument of soft 
law  published  at  EU  level,  the  principles  set  out  in  the  Notice  are  binding  on  the 
Commission  and  limit  its  discretion  in  the  methods  and  elements  to  consider  when 
carrying  out  market  definitions.  In  contrast,  the  Notice  does  not  bind  the  EU  Courts, 
NCAs or national courts nor was it designed to be applicable outside of EU competition 
law. That said, the evaluation results highlight three specific findings in this context. 

First,  the  Notice  has  been  quoted  by  the  EU  Courts  as  good  practice  to  follow  in  the 
assessment of merger and antitrust cases. For instance in case T-446/05, Amann & Söhne 
and  Cousin  Filterie  v  Commission  (2010),  the  General  Court  indicated  that  ‘It  follows 
that the Market Definition Notice contributed to clarifying the limits, already implicit in 
the  conferring  provisions,  of  the  exercise  of  the  Commission’s  discretion  under 
Article 15(2) of Regulation No 17 and Article 23(2) of Council Regulation No 1/2003’. 
The  General  Court  then  follows  by  quoting  paragraphs  4  and 5  of  the  Notice  that  ‘the 
Commission expects to increase the transparency of its policy and decision-making in the 
area  of  competition  policy’  and  that  ‘[i]ncreased  transparency  will  also  result  in 
companies  and  their  advisers  being  able  to  better  anticipate  the  possibility  that  the 
Commission  may  raise  competition  concerns  in  an  individual  case.  Companies  could, 
therefore, take such a possibility into account in their own internal decision-making when 
contemplating,  for  instance,  …  the  establishment  of  certain  agreements’ 47 .  The  EU 
Courts’  rare  criticisms  of  the  Commission’s  market  definition  assessments  since  the 
Notice’s adoption concern an incorrect assessment of facts or an incorrect application of 
the Notice, not deficiencies in the Notice itself. For example, in case T-427/08, CEAHR v 
Commission  (2010),  the  General  Court  considered  that  the  Commission  committed  an 
error because ‘in the light of those elements and in the absence of alternative evidence in 
the contested decision that account was taken of the criteria established by the case law 
and  the  notice  on  the  definition  of  the  relevant  market  (cited  in  paragraphs 67  to 70 
above), the Court considers that the Commission has failed to establish that a moderate 
price  increase  on  the  services  market  would  cause  a  shift  in  demand  on  the 
luxury/prestige watch market which could render such an increase unprofitable, nor that, 
in general, the price of services affects competition between primary products48. 

46   For instance, the Commission has adopted more than 7 200 merger decisions since 1998 which rely on 
the identification of (the absence of) overlapping business activities of the merging companies and thus 
require (at least a rough) market definition. 

47   See  judgment  of  28  April  2010,  Amann  &  Söhne  GmbH  &  Co.  KG  and  Cousin  Filterie  SAS  v 
Commission,  T-446/05,  EU:T:2010:165  (‘T-446/05,  Amann  &  Söhne  and  Cousin  Filterie  v 
Commission’),  paragraphs  59,  71–2,  137–8  and  146;  see  also  T-380/17,  HeidelbergCement  and 
Schwenk Zement v Commission, paragraph 294. 

48   Judgment of 15 December 2010,  Confédération  européenne des associations d’horlogers-réparateurs 
(CEAHR)  v  Commission,  T-427/08,  EU:T:2010:517  (‘T-427/08,  CEAHR  v  Commission’),  paragraph 
118. See also judgment of 12 December 2018, Servier SAS v Commission, T-691/14, EU:T:2018:922, 
paragraphs 1380–592 and in particular paragraphs 1380–405 and 1589–91; and judgment of 25 October 
2002, Tetra Laval BV v Commission, T-5/02, EU:T:2002:264, paragraphs 259–69. 

16 

 
                                                 
Second, as an instrument of soft law published at EU level, the Notice does not require 
implementation  at  Member  State  level.  Nevertheless,  according  to  exchanges  between 
the  Commission  services  and  the  NCAs  through  the  European  Competition  Network 
(‘ECN’), most NCAs take into account the Notice in their enforcement of both national 
and  EU  antitrust  and  merger  law  even  though  it  is  not  binding  on  them.  Therefore, 
although this effect was not envisaged when the Notice was published, it is possible that 
the Notice has contributed to aligning the Commission’s and NCAs’ approach to market 
definition. This will be further assessed in Section 5.5 concerning the Notice’s EU added 
value.  

Third, there is evidence  that the Notice is also used outside of EU antitrust and merger 
law.  In particular,  a number of respondents  to  the public  consultation,  mainly  active in 
the  telecommunications  and  energy  sectors,  indicated  that  they  use  the  Notice  when 
assessing  the  legal  framework  in  sector-specific  regulation,  especially  as  regards  the 
finding of significant market power. One respondent indicated using the Notice for civil 
proceedings to assess whether undertakings are competitors, e.g. in relation to the tort of 
unfair  competition  or  breach  of  confidentiality49.  Any  resulting  questions  of  coherence 
will be further assessed in Section 5.4 as regards the consistency of the Notice with other 
EU policies. 

4.  METHODOLOGY  

The evaluation process was launched in March 2020 and has assessed the Notice against 
the five Better Regulation criteria by asking the following evaluation questions:  

Relevance:  Does  the  Notice  still  pursue  relevant  objectives  in  aiming  to  provide 
guidance  and  transparency  to  stakeholders  and  in  particular  to  provide  correct, 
comprehensive  and  clear  guidance  on  market  definition  in  the  Commission’s  antitrust 
and merger assessments? How well do those objectives correspond to the needs? 

Effectiveness: To what extent has the Notice proven effective in providing guidance and 
transparency  to  all  stakeholders?  In  particular,  does  the  Notice  continue  to  provide 
correct, comprehensive and clear guidance on market definition today? 

Efficiency: Has the Notice led to increased benefits and reduced costs? Is there scope for 
further simplification and cost reduction? 

Coherence: How well have the different components of the Notice operated together? Is 
the  Notice  in  line  with  the  judgments  of  the  EU  Courts  and  changes  in  the  legal 
competition framework, and with other instruments of EU competition policy and other 
EU policies? 

EU added value: To what extent has the Notice provided clear added value at EU level, 
for  instance  by  contributing  to  a  consistent  approach  to  market  definition  by  the 
Commission and the NCAs? 

49   Replies to questions I.2.1 and I.4 of the public consultation questionnaire. 

17 

 
                                                 
The evaluation has been carried out on the basis of a broad body of evidence and a wide-
ranging consultation of and discussion with interested stakeholders. Section 4.1 identifies 
the sources used in the evaluation. Section 4.2 describes how the evidence gathered from 
various sources has been processed. Section 4.3 explains the limitations of the analysis 
carried  out  on  this  basis  and  the  extent  to  which  they  could  be  addressed  in  the 
evaluation.  

4.1. Description and use of the sources of evidence  

Public consultations 

Between  3 April  and  15 May 2020,  the  Commission  services  gathered  feedback  on  the 
evaluation roadmap, including the evaluation questions and the evaluation process. Some 
44  stakeholders  replied,  many  of  them  commenting  already  on  the  substance  of  the 
evaluation.  

Between  26 June  and  9 October 2020,  the  Commission  services  carried  out  an  open 
public consultation on the basis of a dedicated online questionnaire to gather stakeholder 
views on the functioning of the Notice and to gather qualitative and quantitative evidence 
on all five evaluation criteria. The public consultation led to 86 contributions submitted 
through the online questionnaire and 10 position papers submitted outside the online tool. 
The  contributions  came  from  a  variety  of  stakeholders,  with  a  particularly  strong 
participation from large companies located in the EU and from business associations. On 
18 December 2020,  the  Commission  services  published  the  summary  report  of  the 
contributions  to  the  public  consultation  (‘summary  of  the  public  consultation’)  on  the 
Better Regulation portal and on a webpage on DG Competition’s website dedicated to the 
Notice’s evaluation. The summary report is also part of the synopsis report provided in 
Annex 2 to the staff working document.  

Targeted consultation of national competition authorities 

The  Commission  services  also  conducted  a  targeted  consultation  of  NCAs,  which  was 
based  on  the  same  questionnaire  as  that  used  in  the  open  public  consultation.  The 
Commission services received contributions from the NCAs of all 27 Member States, as 
well  as  from  the  NCAs  of  2  EFTA  States.  The  information  provided  by  NCAs 
contributed to the assessment of all five evaluation criteria. As with the summary of the 
public  consultation,  on  18 December 2020  the  Commission  services  published  a 
summary report of the targeted NCA consultation (‘summary of the NCA consultation’) 
on the dedicated webpage on DG Competition’s website.  It  is  also  part of the synopsis 
report provided in Annex 2 to the staff working document. 

The Commission services further sent a smaller questionnaire to a number of NCAs from 
outside the EEA (Australia, Brazil, Canada, Japan, Korea, South Africa, the UK and the 
US) and received replies (written or oral) from all of them. 

Stakeholder meetings  

The  Commission  services  organised  a  number  of  virtual  meetings  with  stakeholders, 
including notably three workshops with the EEA NCAs as well as virtual meetings with a 
number of NCAs from  outside the EEA  (Australia,  the UK and the US), with  different 

18 

 
businesses and their associations, with representatives of law firms, with a Pan-European 
consumer organisation and with  the Association  of European Competition  Law Judges. 
Details on those meetings are listed in Annex 2 to the staff working document. 

Analysis of Commission decisions, EU Court judgments, EEA and non-EEA guidelines, 
national decisions and judgments as well as academic literature and other publications 

The  Commission  services  carried  out  extensive  research  into  best  practices  in  market 
definition, consisting of the following:  

-  review of the Commission’s own enforcement decisions, focusing on the issues of 
market definition that have proven to be most contentious or most complex, such 
as those relating to market definitions in the digital economy or those relating to 
innovation issues;  

-  review of the case-law of the EU Courts with respect to market definition (the EU 
Courts  have  examined  market  definition  issues  in  more  than  a  hundred  cases 
since the adoption of the Market Definition Notice50);  

-  analysis  of  decisions  by  EEA  NCAs  and  by  EEA  national  courts,  including 

through frequent exchanges with NCAs during the evaluation;  

-  analysis  of  legal  and  economic  literature  in  order  to  understand  different 
proposals and theories on market definition discussed in academic research;  
-  consideration  of  non-EEA  approaches  to  market  definition  based  on  exchanges 
with  competition  enforcers  in  Australia,  Brazil,  Canada,  Japan,  South  Africa, 
South Korea, the UK and the US; and 

-  review of relevant papers and roundtables on the topic of market definition held 

in the context of international forums such as the OECD and the ICN. 

External evaluation support study 

DG  Competition  commissioned  an  external  evaluation  support  study  (‘the  support 
study’) to support it in its analysis. Specifically, the purpose of the support study was to 
gather  qualitative  information  on  the  basis  of  three  tasks:  (i)  review  of  decisions  by 
NCAs, judgments by national courts and guidelines issued by national authorities in the 
EEA;  (ii)  review  of  selected  decisions  by  NCAs,  judgments  by  national  courts  and 
guidelines  issued  by  national  authorities  outside  the  EEA  (namely  Australia,  Brazil, 
Canada, Japan, South Africa, South Korea, the UK and the US); and (iii) review of the 
legal and economic literature.  

The support study covered four subject matters: 

50   Since  its  establishment  in  1952,  the  CJEU  has  had  the  opportunity  to  pronounce  on  numerous 
occasions as regards the role and substance of market definition. Since 1997, it has also ruled on the 
Notice’s  role  in  competition  law  assessments  and  has  endorsed  a  number  of  the  principles  set  out 
therein  –  making  them  part  of  EU  case-law.  The  CJEU’s  case  law  has  increased  with  time  in  direct 
correlation  with  the  number  of  antitrust  and  merger  assessments  conducted  by  the  Commission  and 
also by NCAs, which have the competence to directly apply Articles 101 and 102 TFEU.  

19 

 
                                                 
(i) 

(ii) 

(iii) 

(iv) 

the impact of digitisation on market definition, namely approaches to market 
definition in  relation  to multi-sided platforms, ‘digital  ecosystems’, data and 
online sales channels;  
the impact of innovation on market definition, namely approaches to market 
definition  where  innovation  plays  an  important  role  in  competition  between 
undertakings,  even  if  technology  is  not  sold,  purchased  or  licensed  and/or 
demand for the products or services resulting from such innovation does not 
exist at the time of the assessment;  
approaches  to  geographic market  definition, namely the standards applied in 
geographic market  definition,  the main factors and weight  assigned to  them, 
the types of evidence used and the role of supply-side substitutability; and 
the  use  of  quantitative  techniques  in  market  definition,  namely  to  identify 
relevant  techniques  (such  as  critical  loss  analysis,  price  tests,  natural 
experiments  or  surveys)  and  the  conditions  under  which  the  application  of 
each technique is appropriate to inform the market definition analysis.  

Evidence gathered through other Commission initiatives 

In February 2016, at the request of DG Competition, Professors Bruce Lyons and Amelia 
Fletcher from the University of East Anglia prepared an independent economic report on 
the  topic  of  Geographic  Market  Definition  in  European  Commission  Merger  Control. 
DG  Competition  had  asked  Professors  Lyons  and  Fletcher  to  evaluate  its  approach  to 
geographic  market  definition  on  the  basis  of  a  sample  of  recent  merger  cases  from  the 
Commission where this topic played an important role in the assessment. They evaluated 
namely whether the Commission’s definition of geographic markets, taken together with 
its  analysis  of  out-of-market  competitive  constraints,  has  set  an  appropriate  framework 
for analysing mergers. The findings have informed the present evaluation in topics such 
as the evidence required to define geographic markets as discussed in Section 5.2.3 

A  number  of  pre-existing  initiatives  have  also  fed  into  the  present  evaluation  of  the 
Notice in topics pertaining to digitisation as presented in Section 5.2.5. In May 2017, the 
Commission published the final report of the e-commerce sector inquiry51. The results of 
the sector inquiry confirmed the importance of other parameters of competition besides 
price,  namely  quality,  brand  image  and  innovation.  They  also  highlighted  the  growing 
importance of online distribution channels as an alternative to offline channels. Finally, 
and in relation to online transmission, the sector inquiry results pointed to changes in the 
way digital content is accessed and consumed, providing new business opportunities both 
to established operators and new entrants.  

In 2017-2019, the Commission conducted a number of work streams on the effects and 
challenges  for  competition  policy  of  the  digitisation  of  the  economy.  These  initiatives 
were  designed  to  provide  input  to  the  Commission’s  reflections  about  how  EU 
competition  policy  can  best  serve  European  consumers  in  a  fast-changing  world  and 
through  rapid  changes.  First, 
identify  problems  and  solutions  as  markets  go 

51   https://ec.europa.eu/competition/antitrust/sector_inquiry_final_report_en.pdf.  

20 

 
                                                 
Commissioner  Vestager  appointed  a  panel  of  three  special  advisers  from  outside  the 
Commission,  namely  Jacques  Crémer,  Yves-Alexandre  de  Montjoye  and  Heike 
Schweitzer, to explore how competition policy should evolve to continue to promote pro-
consumer  innovation  in  the  digital  age.  The  special  advisers  delivered  their  report  in 
April  2019,  Competition  Policy  for  the  Digital  Era,  Report  for  the  European 
Commission.  Second,  the  Commission  sought  written  contributions  from  stakeholders 
involved in or affected by the digitisation of the economy. Third, on 17 January 2019, the 
Commission held a High-Level Conference on ‘Shaping competition policy in the era of 
digitisation’.  

Evidence  of  ongoing  policy  initiatives  has  also  informed  the  present  evaluation.  In 
October  2018  and  September  2019  respectively,  the  Commission  services  launched 
reviews  of  the  Vertical  and  Horizontal  Block  Exemption  Regulations,  which  define 
certain  categories of agreements that generally fulfil  the conditions of exemption  under 
Article  101(3)  TFEU,  in  part  by  using  market  share  criteria.  The  evaluations,  which 
preceded the ongoing impact assessment phases, included open public consultations and 
were concluded with the publication of staff working documents in September 202052 and 
May  202153 respectively.  These  two  reviews  are  relevant  for  the  present  evaluation  in 
topics including the way in which markets shares are calculated for online intermediation 
platforms  –  a  topic  relevant  for  the  Vertical  Block  Exemption  Regulation  and  its 
accompanying  Guidelines  –  or  how  to  assess  innovation  in  the  presence  of  R&D 
activities  –  a  topic  addressed  in  the  Horizontal  Block  Exemption  Regulations  and  the 
Horizontal Cooperation Guidelines. 

In September 2020, the Commission launched a reflection on how EU competition policy 
can best  support the Green Deal  and  DG Competition subsequently launched a  call for 
contributions.  DG  Competition  also  organised  a  conference  on  the  issue  in  February 
2021. Several contributions  in  this context  highlighted the importance of further taking 
into account consumer preferences for environmentally-friendly products, services and/or 
technologies in market definition, in particular as a factor of product differentiation. The 
findings on “Non-price elements, including innovation” under section 5.2.5 are relevant 
for the role that sustainability plays in market definition. 

In December 2020, the Commission services published the Impact Assessment assessing 
the possible policy options for the Digital Markets Act legislative proposal.54 The impact 
assessment  describes  the  growing  importance  of  digital  services  and  their  providers  in 
today’s  economy  and  assesses  the  obstacles  that  prevent  effective  competition  from 
working in digital markets, including barriers to entry such as network effects, switching 
costs,  data  dependency,  scale  and  scope  economies,  behavioural  bias  and  others.  Since 
the proposal for a Digital Markets Act is of a regulatory nature, its implementation  – if 
adopted along the lines of the proposal – will not involve the definition of markets. That 

52   Commission  staff  working  document,  Evaluation  of  the  Vertical  Block  Exemption  Regulation, 

SWD(2020)173final, 8 September 2020.   

53   Commission  staff  working  document,  Evaluation  of  the  Horizontal  Block  Exemption  Regulations, 

SWD(2021)103 final, 6 May 2021. 

54   https://ec.europa.eu/info/sites/info/files/impact-assessment-dma_en.pdf.  

21 

 
                                                 
said,  the  public  consultations  leading  to  the  Digital  Markets  Act,  in  particular  the  one 
concerning the need for a New Competition Tool,55 had an indirect informative value for 
the  purposes  of  the  present  evaluation  with  the  replies  gathered  having  helped  the 
Commission services’ understanding of digital markets.  

4.2. Processing and triangulation of the evidence collected 

The  Commission  services  analysed  and  triangulated  the  evidence  collected  from  the 
various sources to arrive at the results of the evaluation. 

The main sources of evidence used to inform the assessment of each evaluation criterion 
are  listed  in  the  table  below.  A  further  breakdown  of  this  table,  which  includes  the 
evaluation questions for each criterion and a more detailed reference to the sources used, 
is provided in the evaluation matrix contained in Annex 3 to the staff working document. 

Public 
consultation 

Consultation 
of EEA 
NCAs 

Stakeholder 
meetings 

Research and 
support 
study 

Other 
Commission 
initiatives 

Relevance 

Effectiveness 

Efficiency 

Coherence 

EU added value 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

✔ 

For  the  assessment  of  each  evaluation  criterion,  the  Commission  services  proceeded  as 
set out below.  

The assessment started with a review of the Commission’s enforcement practice and of 
the  guidance  provided  by  the  EU  Courts.  That  analysis  resulted  in  a  preliminary  but 
comprehensive  understanding  of  the  main  issues  in  market  definition  that  have  arisen 
over  the  last  few  years  and  of  the  methodologies  used  by  the  Commission  and  the  EU 
Courts. That evidence was then compared against the results of the public consultation, 
the results of the NCA consultation (both inside and outside the EEA) and of the analysis 
of  the  academic  literature  and  publications  in  international  forums.  That  enabled  the 
Commission services to gain an understanding of the main issues faced by stakeholders 
in  market  definition  and  establish  the  issues  in  which  stakeholders  held  common 
positions,  as  well  as  the  issues  on  which  their  positions  diverged.  The  specific  issues 
raised  by  stakeholders  were  assessed  on  the  merits  of  the  arguments  invoked,  the 
examples and the level of detail provided by stakeholders to support their positions with 

55   https://ec.europa.eu/competition/consultations/2020_new_comp_tool/index_en.html. 

22 

 
 
 
 
 
                                                 
evidence,  the  variety  of  different  positions  and  the  extent  to  which  different  types  or 
groups of stakeholders shared the same view. 

In  line  with  the  objectives  of  the  Notice,  the  Commission  services’  evidence  gathering 
focused  primarily  on  identifying  best  practices  in  market  definition  and  on  identifying 
any  gaps  where  the  Notice  may  not  have  fully  succeeded  in  providing  correct, 
comprehensive and clear guidance. 

4.3. Limitations of the analysis 

The analysis of the different evaluation criteria, including the methodology applied and 
the evidence used, is  subject  to  the following limitations:  (i) the difficulty of  gathering 
quantifiable  evidence  on  the  benefits  related  to  the  Notice;  and  (ii)  a  certain  lack  of 
representativeness of the public consultation.  

First,  as  regards  the  evaluation  criterion  of  efficiency,  it  proved  difficult  to  collect 
quantitative  evidence  of  the  benefits  of  having  the  Notice  in  place,  compared  to  a 
situation  without  it.  While  all  respondents  to  the  public  consultation  questionnaire 
expressing a view and all NCAs expressing a view found that the net benefits associated 
with following the guidance in the Notice are positive, they considered that these benefits 
are hard to quantify. Accordingly, none of the respondents provided any estimates of the 
magnitude  of  the  net  benefits  associated  with  the  Notice.  That  said,  none  of  the 
respondents  listed  any  cost  associated  with  the  Notice’s  existence.  The  conclusions 
drawn in Section 5.3 below therefore essentially  rely on qualitative evidence, including 
that provided by stakeholders in response to the public and the NCA consultations. 

Second,  evaluation  activities  subject  to  voluntary  participation,  by  definition,  do  not 
necessarily  lead  to  representative  results.  In  this  evaluation,  this  applies  to  the  public 
consultation.  While  the  Commission  services  received  contributions  from  a  variety  of 
stakeholder  groups,  large  businesses  and  their  associations  accounted  for  a  particularly 
high share of responses, while representatives of small or medium-sized businesses or of 
consumers  accounted  for  a  much  lower  share.  Furthermore,  businesses  from  the 
telecommunications and media sectors were more represented than businesses from other 
sectors. 

Figure 2 Profile of respondents to the online questionnaire 

23 

 
 
Any limitations were mitigated, however, by the other evaluation activities conducted in 
the context of this  evaluation. These activities  – explained more in detail in Annex 2 – 
included  a  consultation  on  the  evaluation  roadmap,  a  series  of  meetings  and  a 
consultation  with  the NCAs in  the context  of the ECN, as well as meetings with  third-
country  competition  authorities.  The  findings  were  also  compared  against  the  best 
practices  in  market  definition  as  applied  by  the  Commission  and  by  competition 
authorities  within  and  outside  the  EEA,  and  against  the  best  practices  identified  in  the 
academic literature. Furthermore, the Commission services held additional meetings with 
stakeholders  under-represented  in  the  public  consultation,  including  with  academics, 
judges and a consumer organisation.  

Overall, therefore, the lack of representativeness of the public consultation did not result 
in a less complete overview of the main issues arising in market definition.  

In the assessment set out in Section 5, reference is made to specific stakeholder groups 
whenever the views reported were shared primarily by one or more different stakeholder 
groups. While indicative of a trend, the fact that a view was broadly shared by all or only 
some  of  the  stakeholder  groups  does  not  mean  that  the  evaluation  disregards  diverging 
views, either within the same or across different stakeholder groups/sectors. 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

The  following  sections  examine,  in  light  of  the  various  sources  of  evidence  analysed, 
whether  the  Notice’s  objectives  remain  relevant,  whether  the  Notice  pursues  those 
objectives  effectively  and  efficiently,  whether  they  are  pursued  consistently  with  other 
Commission  guidance,  case-law  and  other  initiatives,  and  whether  the  Notice  provides 
EU added value.  

5.1. Relevance  

Evaluation questions: Does  the  Notice  still  pursue  relevant  objectives  in  aiming  to 
provide  guidance  and  transparency  to  stakeholders  and  in  particular  to  provide 
correct,  comprehensive  and  clear  guidance  on  market  definition 
in  the 
Commission’s  antitrust  and  merger  assessments?  How  well  do  those  objectives 
correspond to the needs? 

The need to facilitate competition enforcement and compliance in the internal market to 
the benefit of consumers remains pertinent today as one of the goals of the Union which 
has  been  reflected  in  the  EU  treaties  since  the  EU’s  inception.  The  evaluation  results 
indicate that the objective of providing transparency through correct, comprehensive and 
clear guidance on the Commission’s approach to market definition is still very relevant 
when it comes to meeting those needs. In some respects, it is even more important today 
than in 1997. 

24 

 
This is due, among other reasons, to: (i) the sustained need for the Commission to carry 
out  market  definition  assessments;  (ii)  the  shared  enforcement  of  Articles  101  and  102 
TFEU by the Commission and NCAs, which since 200456 extends to the power to apply 
Article  101(3)  TFEU,  thereby  increasing  the  need  for  common  approaches;  (iii)  the 
antitrust  self-assessment  system  in  place  since  2004;  and  (iv)  the  use  of  market  share 
thresholds in the antitrust and merger systems. The Notice’s relevance is also illustrated 
by  the  frequent  use  of  the  Notice  by  the  Commission,  the  EU  Courts,  NCAs  and 
stakeholders in practice. 

In assessing the Notice’s relevance, the evaluation focused on whether its objectives have 
proven  appropriate  and  whether  they  still  correspond  to  current  needs,  taking  into 
account developments since its adoption. As described in Section 2.3, the Notice aims to 
foster competition enforcement and compliance by providing correct, comprehensive and 
clear  guidance  on  the  Commission’s  approach  to  market  definition,  thereby  increasing 
the  transparency  of  the  Commission’s  policy  and  decision-making  and  helping 
businesses to better anticipate the possibility that the Commission may raise competition 
concerns in an individual case.  

The need to facilitate competition enforcement and compliance in the internal market to 
the benefit of consumers remains unchanged since 1997 and has been reflected in the EU 
treaties since the EU’s inception57. The benefits of competition enforcement and policy 
have  been  studied  and  proven  in  different  ways 58 .  They  include  faster  productivity 
growth,  an  increase  in  innovation  and  employment  growth.  That  said,  it  is  inherently 
difficult  to  measure  quantitatively  the  impact  of  an  effective  competition  enforcement 
system  in  a  given  timeframe.  That  is  because  one  of  its  effects  is  deterring  anti-
competitive  behaviour  and  mergers  –  which  are  impossible  to  measure  as  they  are 
precisely  what  does  not  occur  where  the  policy  is  effective.  This  notwithstanding,  the 
Commission services annually estimate the customer savings resulting from Commission 
interventions  in  mergers  based  on  the  methodology  and  guidance  provided  by  the 
OECD 59.  According  to  these  estimates,  the  customer  benefits  resulting  from  merger 
interventions by the Commission in the period 2016–2020 were between EUR 55.2 and 
91.9 billion60. These calculations underestimate the benefits’ full amount as they do not 

56   According  to  Article  45  of  Council  Regulation  (EC)  No  1/2003  of  16  December  2002  on  the 
implementation  of  the  rules  on  competition  laid  down  in  Articles  81  and  82  of  the  Treaty  on  the 
Functioning of the European Union (‘Council Regulation 1/2003’), the Regulation has been applied as 
from  1  May  2004.  Prior  to  the  adoption  of  that  regulation,  under  Council  Regulation  No  17  of  6 
February 1962, only the Commission was empowered to grant exceptions under Article 101(3) TFEU. 
57   For the current framework,  see Article 3(3) of the  Treaty on European Union and its Protocol 27 and 

Article 3(1)(b) and Articles 101-109 TFEU. 

58   Cf. for instance OECD (2014), Factsheet on how competition policy affects macro-economic outcomes, 

with an overview of studies and papers.  

59   The  Commission  services  also  calculate  the  consumer  benefits  resulting  from  Commission  cartel 
investigations, but these are of less relevance in this context as market definition plays a lesser role in 
cartel assessments, as explained in Section 2.2. 

60   Every  year,  the  Commission  services  estimate  the  benefits  to  customers  resulting  from  its  merger 
interventions  and  publishes  them  in  DG  COMP’s  annual  activity  report.  The  methodology  takes  into 
account prohibitions, conditional approvals and withdrawals of notifications in Phase II and is based on 
three  main  parameters:  (i)  likely  price  increase  avoided  (two  assumptions  are  typically  used:  3%  and 

25 

 
                                                 
 
include  benefits  associated  with  the  deterrence  of  anti-competitive  mergers.  Therefore, 
the  calculations  can  provide  a  rough  indication  of  some,  but  by  no  means  all,  of  the 
benefits of EU merger enforcement in particular. 

The evaluation results indicate that the objective of providing correct, comprehensive and 
clear guidance on the Commission’s approach to market definition is still very relevant 
when it comes to meeting those needs and in some respects is even more pertinent today 
than in 1997. 

First, there is still a need to define relevant markets.  

In fact, legal and economic developments have sustained the need for the Commission to 
carry  out  market  definition  assessments  in  its  enforcement  of  EU  antitrust  and  merger 
rules.  This  is  illustrated  for  instance  in  the  growing  trend  in  the  number  of  merger 
decisions adopted by the Commission since 1997.61 

Figure 3 : Number of annual merger decisions in the period 1991 to 2020 

A  small  number  of  stakeholders  (including  businesses  and  business  associations)  have 
played down the importance of market definition assessments due to changes in market 
dynamics.  In  the  Crémer  et  al.  (2019)  report  commissioned  by  the  Commission,  the 
authors argue that ‘In the digital world, market boundaries might not be as clear as in the 
“old  economy”. They may  change very  quickly.  Furthermore, in  the case of multisided 
platforms,  the  interdependence  of  the  “sides”  becomes  a  crucial  part  of  the  analysis 
whereas the traditional role of market definition has been to isolate problems. Therefore, 

5% respectively for the lower and upper boundaries of the calculation); (ii) total size (by value) of the 
product  markets  affected;  and  (iii)  expected  duration  of  the  price  increase  avoided  (in  each  case  the 
prevalent barriers to entry are specifically examined in order to estimate the relevant periods). See DG 
COMP, Annual Competition Report 2019, page 12. 

61   The  decision  figures  for  antitrust  decisions  over  this  timeframe  would  not  be  illustrative  given  the 
change  in  the  antitrust  system  introduced  by  Council  Regulation  1/2003  that  allowed  for  the 
decentralisation of some decisions to NCAs and stopped the notification regime. 

26 

 
 
                                                                                                                                                 
 
[…],  in  digital  markets,  we  should  put  less  emphasis  on  analysis  of  market  definition, 
and  more  emphasis  on  theories  of  harm  and  identification  of  anti-competitive 
strategies’62.  

However,  the  need  for  defining  a  market  in  most  antitrust  and  merger  assessments  has 
been confirmed by EU court judgments. As described in Section 2.2, the CJEU explicitly 
confirmed the need for a market definition already in early cases predating the Notice63, 
and the EU Courts have continuously held that position also after the Notice’s adoption. 
In a recent judgment of January 2021 in T-691/18, KPN v Commission, for example, the 
General  Court  explained  again  that  ‘[i]t  must  be  recalled  that,  with  regard  to  the 
application  of  the  rules  on  the  control  of  concentrations,  a  proper  definition  of  the 
relevant  market  is  a  necessary  precondition  for  the  assessment  of  the  effects  of  the 
concentration  on  competition’  (paragraph  63).  Academic  commentary  and  other 
commentary equally refer to market definition’s central role in EU competition law64. 

In  this  context,  Professors  J-U  Franck  and  M.  Peitz  indicated  in  a  presentation  to  the 
Commission on 25 March 2021, ‘that the finding that market definition is more complex, 
error-prone and possibly less informative in the case of two-sided platforms may indeed 
lead to quite the opposite conclusion to the one stated above [statement in Cremer et al. 
(2019)  report]:  the  (correct)  application  and  interpretation  of  market  definition  on  two-
sided platforms requires special diligence and attention’.  

Second,  there  is  still  a  need  today  for  a  notice  providing  guidance  on  market 
definition.  

In  the  first  place,  there  was  near  consensus  among  the  respondents  to  the  public 
consultation  that  there  is  still  a  need  for  a  notice  on  market  definition.  They  explained 
that the Notice helps companies assess the compliance of their activities with competition 
rules  and  improves  the  predictability  of  competition  authorities’  assessments,  thereby 
contributing to legal certainty and to a reliable business environment65. 

One business association explained that ‘A Notice is necessary and critical, as it provides 
an opportunity to understand the views of the enforcement authority as to what method is 
more  acceptable,  the  comprehensiveness  level  of  evidence.  The  relevant  market 
definition  is  the  foundation  of  any  competitive  assessment  and  it  is  fundamental 
especially  for  merger  control  analysis  and  for  the  assessment  of  a  dominant  position. 
How  the  relevant  market  is  defined  frequently  decides  the  assessment  result  and  the 
corresponding  administrative  decision  of  the  enforcers  on  specific  proceeding’66.  One 

62   Crémer, J., de Montjoye, Y., and Schweitzer, H., ‘Competition Policy for the Digital Era’,  Report for 

63   See, for example, Case 27/76, United Brands v Commission, paragraph 10 and Case 6/72, Continental 

the European Commission, 2019. 

Can v Commission, paragraphs 29–35.  

64   See  e.g.  with further references,  Woolfe, P., and Kerr Morrison, J., ‘Market Definition’, in  European 
Union Law of Competition (Bellamy and Child eds., 8th edn 2018), pp. 257–326 2018. See also Ferro, 
M., Market Definition in EU Competition Law, 2019. 

65   See summary of the public consultation. 
66   Reply of business association to question II.1.1 of the public consultation questionnaire.  

27 

 
 
                                                 
business  organisation  also  indicated  that  ‘Market  definition  is  an  important  step  in 
competition cases. The determination of whether a potentially anticompetitive practice is 
permissible, or whether a merger can progress, often depends on the estimated effects on 
the  relevant  market  […].  Market  definition  also  provides  insight  that  can  allow 
businesses  to  carry  out  internal  legal  risk  assessments,  and  competition  authorities  to 
close  an  investigation  at  an  early  stage  (e.g.  under  the  horizontal  or  vertical  block 
exemptions).  Market  definition  is  commonly  accepted  by  courts  and  competition 
authorities as a useful intermediary step in competition cases’67. 

In  fact,  as  explained  in  Sections  2.3  and  2.5,  companies  often  have  to  self-assess  their 
market  share,  in  particular  as  one  of  the  elements  determining  the  scope  of  the  block 
exemption regulations for Article 101(3) TFEU. Similarly and as already mentioned, the 
Commission uses market share thresholds to identify merger cases suitable for simplified 
review. Furthermore, the Notice enables stakeholders to save on internal  resources, and 
possibly  on  resources  spent  on  consultancy  from  law  firms  and  economic  consultants. 
The  absence  of  the  Notice  would  trigger  the  need  to  research  a  large  number  of 
Commission  decisions  and  court  judgments  and  potentially  also  literature  on  market 
definition to determine how the Commission would likely define the relevant market(s) 
and  what  elements  it  would  take  into  account  in  the  context  of  an  antitrust  or  merger 
investigation.  

In the second place, almost all NCAs indicated that they consider the objectives pursued 
by  the  Notice  to  be  still  relevant68.  The  NCAs  stated  that  the  text  is  a  useful  tool  for 
companies  and  their  advisers  as  well  as  for  competition  authorities  when  considering 
how to define relevant markets in antitrust and merger assessments69.  

This  is  also  confirmed  by  the  adoption  of  similar  documents  by  the  NCAs  and  by 
authorities outside the EEA. According to the consultation of the NCAs, around half of 
them  have  their  own  national  guidelines  on  market  definition 70  and  some  others 
mentioned  that  they  have  plans  to  adopt  such  an  instrument  in  the  coming  months71. 
Authorities outside the EEA also have their own guidelines, including Australia, Brazil, 
Canada, Japan, South Korea, UK and the US72.  

In the third place, the Notice’s relevance is confirmed by the customary references to it in 
Commission  decisions.  For  instance,  all  decisions  adopted  between  2018  and  2020 
concerning infringements of Article 102 TFEU contain references to the Notice73. In the 

67   Reply of a business organisation to question II.1.1 of the public consultation questionnaire.  
68  Two NCAs indicated that the Notice’s objectives are no longer relevant because the guidance focuses 
on static patterns of substitution, whereas dynamic aspects of competition should be taken into account. 
However,  these  comments  do  not  concern  the  relevance  of  the  Notice’s  objectives  but  the  lack  of 
guidance on dynamic aspects of competition and therefore relate to the Notice’s effectiveness 

69   See Summary of the NCA consultation. 
70   Namely  Bulgaria  Croatia,  Finland,  France,  Hungary,  Ireland,  Latvia,  Lithuania,  the  Netherlands, 

Poland, Portugal, Romania. Similarly, the EFTA Surveillance Authority. 

71   See Summary of the NCA consultation. 
72   See support study. 
73   On the basis of public versions of decisions during that period. 

28 

 
                                                 
case of merger decisions, out of the 23 Phase II merger decisions adopted between 2018 
and 2020, 19 contained a reference to the Notice. The Notice is also often referred to in 
judgments of the CJEU and the General Court74,75. These references confirm the Notice’s 
relevance  in  the  way  in  which  it  summarises  and  consolidates  the  general  principles 
applicable to market definition that stem from case-law and case practice. 

Even when the Notice is not directly quoted by the Commission in its decisions, it is still 
applied  and  used  by  both  the  Commission  and  the  undertakings  interacting  with  the 
Commission.  This  was  confirmed  by  more  than  75%  of  respondents  to  the  public 
consultation,  which  indicated  that  they  had  assessed  relevant  product  and  geographic 
markets  over  the  past  five  years,  with  more  than  half  indicating  that  they  consult  the 
Notice several times per year76. 

Third, the notice today satisfies more needs than when adopted in 1997. 

Firstly,  providing  guidance  on  market  definition  in  order  to  increase  transparency  has 
gained importance since 1997. This is because Council Regulation 1/2003 decentralised 
the application of Articles 101 and 102 TFEU by empowering NCAs and national courts 
to apply these two articles of the TFEU77. This increased the need for harmonisation of 
approaches  among  the  different  NCAs  and  the  Commission,  which  can  be  better 
achieved  through  more  transparency  on  the  Commission’s  approach.  Furthermore,  the 
successive EU enlargements after 2003 have increased the number of NCAs applying the 
TFEU provisions, further enhancing the benefits of Commission guidance. 

Secondly, providing guidance on market definition has become more relevant since 1997 
in  helping  businesses  better  anticipate  the  possibility  that  the  Commission  may  raise 
competition concerns in an individual case. This is because of the following two changes 
in the EU antitrust and merger systems:  

74   Examples  of  recent  court  decisions  referring  to  the  Notice  are  T-691/18,  KPN  v  Commission, 
paragraphs 67-69, on a decision declaring a concentration compatible with the internal market and the 
Agreement  on  the  European  Economic  Area  (‘EEA  Agreement‘),  T-380/17,  HeidelbergCement  and 
Schwenk Zement v Commission, paragraphs 283, 294 and 330, on a decision declaring a concentration 
incompatible with internal market and the EEA Agreement, judgment of 29 February 2016, EGL, Inc. 
and Others v Commission, T-251/12, EU:T:2016:114, paragraphs 26 and 98, on a decision finding an 
infringement  of  Article  101  and  judgment  of  11  January  2017,  Topps  Europe  Ltd  v  Commission,  T-
699/14,  EU:T:2017:2  (hereinafter  referred  to  as  ‘T-699/14,  Topps  Europe  v  Commission’),  paragraph 
82, on a decision rejecting the complaint lodged by the applicant concerning infringements of Articles 
101 and 102 TFEU. 

75   Moreover, the EFTA Surveillance  Authority  has adopted a notice on relevant  market that reflects the 
content of the Notice and is applied by the EFTA Surveillance Authority and interpreted by the EFTA 
Court.  See  Notice  of  the  EFTA  Surveillance  Authority  on  the  definition  of  relevant  market  for  the 
purpose of competition law within the European Economic Area (EEA). OJ L 200, 16.7.1998, p.46 and 
EEA Supplement to the OJ No 28, 16.7.1998, p. 3. 

76   See Summary of the public consultation. 
77   Articles 5 and 11 of Council Regulation 1/2003.  

29 

 
                                                 
b) 

a)  Council  Regulation  1/2003  introduced  a  system  of  self-assessment  following 
which  companies  can  no  longer  notify  their  agreements  to  the  Commission  in 
order to benefit from the exemption under Article 101(3) TFEU78; and 
the  Commission  introduced  in  2000  a  simplified  merger  review  which  relies  in 
part  on  the  absence  or  limited  nature  of  horizontal  and  vertical  relationships79 
between  the  merging  companies’  activities  as  measured  by  market  share 
thresholds,  which  requires  businesses  to  self-assess  their  market  share  before 
choosing between the “normal” and the “simplified” merger control procedure.  

Finally,  it  is  important  to  mention  that  several  respondents  to  the  public  and  NCA 
consultations  indicated  that  the  Notice  needs  to  be  updated  to  reflect  developments  in 
case-law,  as  well  as  technological  and  economic  developments  that  have  changed  the 
way  certain  markets  function80.  These  submissions  concern  less  the  relevance  of  the 
Notice’s objectives but rather its current effectiveness, which will be discussed in Section 
5.2. 

In this context, one needs to consider that the Notice aims to set out broad principles that 
apply  to  market  definition  across  the  board,  including  to  evolving  products  and 
technologies,  and  at  the  same  time  to  provide  guidance  on  some  specific  issues.  These 
broad  principles  include  among  others  (i)  defining  product  and  geographic  markets  on 
the  basis  of  demand,  but  also  supply  substitutability;  (ii)  relying  on  short-term  and 
effective  constraints  in  that  assessment;  (iii)  taking  into  account  price  and  non-price 
parameters; and (iv) carrying out the review using a broad evidence base. Had the Notice 
been  drafted  to  focus  on  a  series  of  particular  topics  instead,  it  could  have  quickly 
become outdated and lost most of its relevance, given the evolving nature of the economy 
and technology.  

5.2. Effectiveness  

Evaluation questions: To  what  extent  has  the  Notice  proven  effective  in  providing 
guidance  and  transparency  to  all  stakeholders?  In  particular,  does  the  Notice 
continue to provide correct, comprehensive and clear guidance on market definition 
today? 

The  evaluation  results  indicate  that  the  Notice  is  effective  in  providing  guidance  and 
transparency  to  stakeholders  in  many,  but  not  all,  respects.  On  key  issues,  the  Notice 
continues to provide correct, comprehensive and clear guidance on market definition and 
the Commission’s approach to it today, and continues to adequately reflect EU case-law. 
This is because the Notice goes beyond providing a repertory of case-law and practice, 
but  also  provides  guidance  on  principles  that  are  sufficiently  general  and  apply  to 

78   Article 1 of Council Regulation 1/2003. 
79   Horizontal relationships arise when undertakings are engaged in business activities in the same product 
and  geographic  market.  Vertical  relationships  arise  when  an  undertaking  is  engaged  in  business 
activities in a product market that is upstream or downstream from a product market in which another 
undertaking is engaged. 

80   See Summary of the public consultation and Summary of the NCA consultation. 

30 

 
                                                 
different  market  contexts.  This  has  been  essential  to  guarantee  that  the  Notice  has 
remained future-proof in most of its content for more than 20 years.  

However, the evaluation results also suggest that there are areas where the Notice does 
not reflect current best practices as derived from: (i) EU case-law – which is binding on 
the  Commission  as  the  EU  Courts  are  the  ultimate  authority  for  interpreting  EU 
competition law; (ii) the Commission’s current practice; (iii) the practice of other leading 
competition authorities; and (iv) high-quality academic research81. These areas concern in 
particular  evolutions  since the Notice’s adoption in  1997 concerning different  issues of 
market  definition,  as  summarised  in  this  section.  These  include  the  use  and  purpose  of 
the SSNIP test in different market constellations, the assessment of market definitions in 
rapidly evolving markets (including those characterised by high levels of innovation), the 
use  of  quantitative  techniques  and  refinement  of  market  share  calculations  and,  most 
notably,  the  application  of  the  principles  of  market  definition  to  phenomena  linked  to 
digital markets. 

While  the  principles  of  market  definition  remain  unchanged,  the  evaluation  results 
suggest  that  their  application  in  digital  contexts  can  lead  to  additional  complexities. 
These  are  linked,  among  others,  to  defining  markets  for  multi-sided  platforms  (in 
particular  where  services  are  supplied  at  zero  monetary  price),  to  defining  markets  for 
‘digital ecosystems’ and to assessing online vs offline competition. Other issues linked to 
digitisation and market definition concern new barriers to entry and switching costs (for 
instance  data  (portability),  interoperability,  privacy,  network  effects  or  single/multi-
homing)  and  non-price  considerations  in  substitution  assessments  (including  the 
sustainability  of  products).  Stakeholders  shared  a  near-unanimous  view  during  the 
evaluation that the Notice, published in 1997 and therefore preceding important advances 
in  information  technology,  lacks  appropriate  guidance  on  the  effects  of  digitisation  on 
market definition. Nevertheless, the evaluation results also show that not all of the market 
definition issues arising have been settled, but rather that practices may evolve further in 
the future. This may make it challenging to provide exhaustive and future-proof guidance 
in  a potential updated Notice on all of the issues mentioned during the  evaluation. The 
individual  points  raised  on  digitisation  concern  a  wide  range  of  issues,  which  will  be 
discussed  in  the  following  sections  where  relevant,  and  –  as  regards  multi-sided  or 
platform markets – in particular in Section 5.2.5.  

The following discusses the Notice’s effectiveness in five subsections that largely follow 
the structure of the Notice itself:  

  Subsection 5.2.1 discusses the role of market definition82;  
  Subsection 5.2.2 definitions and basic principles of assessing substitutability83;  
  Subsection 5.2.3 looks at the evidence used to define markets84;  

81   This is acknowledged in paragraph 6 of the Notice, which reads: ‘The Commission's interpretation of 
“relevant market” is without prejudice to the interpretation which may be given by the Court of Justice 
or the Court of First Instance of the European Communities.’ 

82   See Notice, Section I. Introduction. 
83   See Notice, Section II. Definition of relevant market. 

31 

 
                                                 
  Subsection 5.2.4 examines market shares85; and  
  Subsection 5.2.5 focuses on additional considerations86.  

The question assessed in each of the subsections is the same; that is whether the Notice 
continues  to  provide  correct,  comprehensive  and  clear  guidance  on  market  definition 
today with respect to that particular topic. 

5.2.1.  Role of market definition 

The evaluation results indicate that the Notice generally provides correct, comprehensive 
and clear guidance as to the role of market definition in competition law proceedings.  

However,  the  evaluation  results  also  indicate  that  the  Notice  does  not  reflect  all 
refinements  to  the  Commission’s  practice  in  this  respect  since  1997.  These  include:  (i) 
the  difference  between  (backward-looking)  antitrust  and  (forward-looking)  merger 
assessments and the possibility to define different markets for the same economic activity 
more in  general  (because of,  for  example, time difference between the decisions or the 
differences  in  facts  of  the  cases);  (ii)  the  role  of  market  definition  in  differentiated 
markets; (iii) the practice of leaving market definitions open; and (iv) the precedent value 
of market definitions.  

The Notice provides guidance on the role and need for market definition in competition 
law proceedings in EU law. In line with the principles set out in Section 2.2, the Notice 
provides  that  market  definition  is  a  tool  to  identify  and  define  the  boundaries  of 
competition  between  firms  and  that its  main  purpose  is  to  identify  in  a  systematic  way 
the  competitive  constraints  that  the  undertakings  involved  face.  Market  definition  also 
makes it possible to calculate meaningful market shares87. The Notice also explains that 
the  concept  of  relevant  market  is  closely  related  to  the  objectives  pursued  under  EU 
competition policy and describes the role of market definition in Article 101, Article 102 
TFEU and merger control assessments88. 

The evaluation results indicate that the Notice provides correct, comprehensive and clear 
guidance  as  to  the  role  of  market  definition.  The  evaluation  results  did  not  identify 
divergences  between  the  description  in  the  Notice  and  the  role  of  market  definition  in 
practice.  This  is  supported  by  the  results  of  the  public  and  NCA  consultations.  Several 
respondents,  including  NCAs  and  those  from  the  business  community,  mentioned  the 
role of market  definition as one of the main points  of continuity that have not  changed 
since 1997 and that should continue guiding the principles of the Notice89. One business 
respondent  commented,  for  example:  ‘Market  definition  is  a  tool  to  identify  the 

84   See Notice, Section III. Evidence relied on to define relevant markets. 
85   See Notice, Section IV. Calculation of market share. 
86   See Notice, Section V. Additional considerations. 
87   Paragraphs 2 and 3 of the Notice. 
88   Paragraphs 10-12 of the Notice. 
89   Summary of the public consultation and Summary of the NCA consultation. 

32 

 
                                                                                                                                                 
 
immediate competitive constraints exercised on firms … it plays, and should continue to 
play, an integral role in EU competition policy’90. 

However, the evaluation results suggest that the Notice does not reflect all refinements to 
the Commission’s practice on the following issues: (i) the difference between (backward-
looking) antitrust and (forward-looking) merger assessments and the possibility to define 
different  markets  for  the  same  economic  activity  more  in  general  (because  of,  for 
example ,time difference between the decisions or differences in the facts of the cases); 
(ii)  the  role  of  market  definition  in  differentiated  markets;  (iii)  the  practice  of  leaving 
market definitions open; and (iv) the precedent value of market definitions.  

Differences in merger and antitrust assessments and defining different markets for 
the same economic activity 

Merger and antitrust assessments differ in that merger assessments concern the impact of 
the  notified  concentration  and  hence  has  a  forward-looking  aspect  to  it.  In  contrast, 
antitrust assessment mainly aims at establishing whether an infringement has happened in 
the  past  (or  is  currently  on-going),  but  may  also  include  forward-looking  assessments 
when companies need to self-assess whether a future agreement or business practice may 
constitute an infringement of Article 101 or 102 TFEU.  

Certain  respondents  to  the  consultations,  including  NCAs  and  those  from  the  business 
community, argued that the Notice is not entirely clear on the differences in the approach 
between  (backward-looking)  antitrust  and  (forward-looking)  merger  cases  and,  more 
generally, on the possibility to define different markets for the same economic activity91. 

The Commission practice shows that, where justified by the specificities of the case and 
markets  at  hand,  the  Commission  has  defined  different  relevant  markets  for  the  same 
economic activity, namely when there is a time lag between decisions92 or when the time 
horizon considered in the decisions differ93 (in particular in rapidly evolving markets) and 
depending  also  on  the  theory  of  harm  under  consideration94, 95.  That  market  dynamics 

90   Reply of a business organisation to question II.1.1 of the public consultation questionnaire.  
91   Summary of the public consultation and Summary of the NCA consultation. 
92   See the examples of Commission defining different markets for similar products over time in M.580 – 
ABB/Daimler-Benz  and  M.5754  –  Alstom  Holdings/Areva  T&D  as  concerns  the  market  for  rail 
technology, in M.3225 – Alcan/Pechiney and M.9076 – Novelis/Aleris as concerns steel and aluminium 
for automotive applications. 

93   This  can  be  the  case  for  forward-looking  merger  and  backward-looking  antitrust  assessment.  See  for 
example the antitrust decision in AT.39711 – Qualcomm (predation), which was adopted in July 2019 
but assessed the conduct of Qualcomm from June 2009 to July 2011, as opposed to the merger decision 
in  M.8306  –  Qualcomm/NXP,  adopted  in  2018.  In  the  prior  case,  the  Commission  did  not  conclude 
whether LTE chipsets  were in the same  market as UMTS chipsets but conducted the assessment in a 
market  only  including  UMTS  chipsets,  given  that  the  volume  and  value  of  LTE  chipsets  traded  was 
minimal  in  comparison  to  UMTS  chipsets  at  least  until  2011.  In  the  latter  case  however,  the 
Commission  segmented  the  relevant  market  according  to  the  cellular  standard  (e.g.  LTE  and  UMTS 
separately).  This  was  supported  by  for  example  earlier  standard  chipsets  not  exercising  competitive 
constraint  on  later  generation  chipsets  and  it  was  further  estimated  that  by  2020,  chipsets  supporting 
LTE would account for [60–70]% of all baseband processors shipped. 

94   In  M.7932  –  Dow/DuPont,  the  Commission  defined  a  market  at  the  level  of  crop/pest  combination 
groupings, at the national level. The Commission also calculated market shares for these groupings at 

33 

 
                                                 
 
may evolve and thus the boundaries of relevant markets may change over time is at least 
partially  covered  by  paragraph  12  of  the  Notice,  which  suggests  that  there  may  be 
differences  between  concentration  (merger)  or  cooperative  joint  venture  and  past 
behaviour (antitrust) assessments.  

Differentiated markets  

Differentiation describes a situation where products or services are not perfect substitutes 
for  customers.  Differentiation  can  occur  at  both  product96 and  geographic  level97.  Some 
NCAs observed that, while market  differentiation is  mentioned briefly, the Notice does 
not  explicitly  discuss  the  role  of  market  definition  in  differentiated  markets  even  if 
differentiated markets are considered in case practice.98 One NCA in particular submitted 
that it could be interesting for the Notice to mention situations where market definition 
may not be as useful or necessary as is usually assumed, for instance if diversion ratios 
are  available  in  a  horizontal  merger  to  assess  the  closeness  of  competition  in 
differentiated  markets.  In  the  Commission’s  case  practice,  the  extent  to  which  market 
shares calculated on the basis of the market definition are informative may indeed vary 
depending on the degree of differentiation of the products and geographies assessed and 
the  competitive  assessment  may  include  an  assessment  of  closeness  of  competition  in 
appropriate cases99.  

Leaving market definitions open 

The Notice explains in paragraph 27 that the Commission may leave market definitions 
open  in  cases  where  no  competition  concerns  arise.  This  practice  has  the  effect  of 
limiting  the  burden  on  companies  to  supply  information,  a  benefit  also  observed  by 
respondents  to  the  public  and  NCA  consultations100.  Nonetheless,  the  Commission  has 
developed  a  practice  of  leaving  the  market  definition  open  not  only  when  competition 
concerns  do  not  arise  but  in  all  situations  where  concluding  on  the  exact  scope  of  the 
relevant market would not affect the outcome of the competitive assessment. The practice 
has been confirmed and accepted in the case-law of the EU Courts101. 

the  EEA  level  for  context  as  being  informative  of  the  strength  of  market  players  at  the  level  of  their 
portfolio of active ingredients, as well as global market shares of R&D suppliers, as being informative 
of the relative strength of suppliers bringing new active ingredients to the market.  

95   See also summary of the ECN meetings in Annex 2.2.4. 
96   Product differentiation occurs with respect to the attributes of the product, such as design, brand or any 

other specific feature that may appeal to the differing tastes and preferences of customers. 
‘Geographic differentiation’ refers to the location of the product or service. 

97  
98   Summary of the NCA consultation. 
99   See, for example, M.8444 ArcelorMittal/Ilva where the Commission concluded that the markets for flat 
carbon steel products in the EEA were geographically differentiated, and took that differentiation into 
account in the competitive assessment. 

100  Summary of the public consultation and Summary of the NCA consultation. 
101  See  judgment  of  8  July  2003,  Verband  der  freien  Rohrwerke  eV,  Eisen-  und  Metallwerke  Ferndorf 
GmbH and Rudolf Flender GmbH & Co. KG v Commission, T-374/00, EU:T:2003:188, paragraphs 107 
and  110;  and  judgment  of  26  October  2017,  KPN  BV  v  Commission,  T-394/15,  EU:T:2017:756, 

34 

 
                                                                                                                                                 
 
 
Precedent value 

The  Notice  does  not  explain  whether  market  definitions  in  earlier  cases  are  binding  on 
the Commission. One business association responding to the public consultation argued 
in  this respect  that ‘the  Notice should take a position  on the precedent  value of market 
definitions  from  merger  to  antitrust  cases  and  vice-versa’,  but  also  claimed  that  the 
Notice should clarify that ‘a market definition by the Commission in an earlier case is not 
binding on the Commission in a subsequent case’102. Such position has been confirmed in 
the  EU  Courts’  case-law103.  The  Commission’s  decisional  practice  also  indicates  that 
while it may take existing market definition precedents as a starting point for the analysis 
in  a  given  case 104 ,  the  analysis  is  always  case-specific  and  takes  into  account  the 
specificities of the case and markets at hand.   

5.2.2.  Definitions and basic principles of assessing substitutability 

The evaluation results suggest that the Notice generally provides correct, comprehensive 
and  clear  guidance  as  to  the  definitions  of  the  product  and  geographic  market  and  the 
basic  principles  of  assessing  substitutability,  namely  to  rely  on  demand  substitution  as 
the  main  competitive  constraint,  complemented  by  supply  substitution  if  it  is  as 
immediate  and  effective  as  demand  substitution.  Furthermore,  the  evaluation  results 
show  that  the  current  approach  of  assessing  potential  competition  in  the  competitive 
assessment is sound and in line with EU case-law and international consensus. 

Nonetheless,  the evaluation  results indicate that refinements of best  practices in  market 
definition  have  taken  place  since  the  adoption  of  the  Notice.  These  include:  (i)  the 
temporal dimension of market definition; (ii) the use of the SSNIP (‘small but significant 
non-transitory increase in price’) test to assess substitutability (including issues with its 
application to multi-sided platforms and bidding markets); (iii) issues concerning supply 
substitutability;  (iv)  market  definitions  in  rapidly  evolving  markets;  (v)  asymmetric 
constraints; and (vi) the assessment of geographic markets in conditions of globalisation 
and import competition.  

paragraph 60.  See also T-380/17,  HeidelbergCement and Schwenk Zement  v Commission, paragraphs 
316–20.  In  the  latter  case,  the  Commission  in  the  contested  decision  considered  that  the  exact  sub-
segmentation  of  the  grey  cement  market  could  be  left  open  since  the  transaction  would  lead  to  a 
significant  impediment  of  effective  competition  under  all  product  market  definitions.  As  regards  the 
geographic  market,  the  Commission  concluded  that  it  could  be  left  open  as  the  concentration  would 
significantly  impede effective competition under both possible alternative  market definitions (circular 
catchment area or modified catchment area). M.7878 – HeidelbergCement, paragraphs 144 and 160. 

102  Position paper submitted in response to the public consultation.  
103  Judgment of 14 December 2005, General Electric Company v Commission, T-210/01, EU:T:2005:456, 

paragraph 120.  

104  This is independent of the instrument concerned. In other words, the Commission may, for example, in 
an antitrust assessment, take a market definition adopted in a merger case as the starting point or initial 
hypothesis for its analysis. 

35 

 
                                                                                                                                                 
 
The Notice provides guidance on the basic principles of market definition. In particular, 
as  explained  in  Section  2.2,  markets  are  defined  by  a  combination  of  product  and 
geographic  dimension 105 ,  in  line  with  EU  case-law.  Furthermore,  substitutability 
concerns the alternatives a customer and a supplier have, from a technical and economic 
perspective, in serving a specific customer demand by switching to the consumption or 
supply of alternative products or services (or to and from alternative areas). In defining 
markets,  the  Notice  puts  particular  emphasis  on  demand  substitution  as  the  most 
immediate competitive constraint, while supply substitution can be considered where its 
effects  are  equivalent  to  those  of  demand  substitution  in  terms  of  effectiveness  and 
immediacy.  Potential  competition,  on  the  other  hand,  is  solely  considered  at  the 
competitive  assessment  stage  as  it  deals  with  the  out-of-market  constraints  from  more 
distant  or  future  competitors  that  have  yet  to  enter  the  market.  This  approach  has  been 
confirmed  by  EU  Courts,  which  have  affirmed  the  difference  in  timeliness  between 
supply substitution and potential competition106. 

The  identification  of  product  and  geographic  market  as  well  as  the  basic  principles  of 
market definition have been explicitly confirmed in EU case-law107. In the consultations, 
the majority of NCAs and respondents to the public consultation also indicated that those 
elements and basic principles of market definition have not changed and should continue 
guiding  the  Notice.  For  example,  a  clear  majority  of  NCAs  explained  that  neither  the 
identification  of  the  sources  of  competitive  constraints,  nor  the  focus  on  demand 
substitutability  as  the  main  criterion  have  changed  since  the  adoption  of  the  Notice.108 
This  view  was  overall  supported  by  the  public  consultation.109 Further,  among  the  vast 
majority  of  respondents  to  the  public  consultation  that  considered  that  there  are  many 
points of continuity that have not  changed since  1997, the three sources of competitive 
constraints, as basic principles of market definition, were mentioned most often as points 
that should continue guiding the principles of the Notice.110 

Nonetheless,  the evaluation  results indicate that  refinements  of best  practices in  market 
definition  have  taken  place  since  the  adoption  of  the  Notice.  These  include:  (i)  the 
temporal  dimension  of  market  definition;  (ii)  the  use  of  the  SSNIP  test  to  assess 
substitutability (including issues with its application to multi-sided platforms and bidding 
markets);  (iii)  issues  concerning  supply-side  substitutability;  (iv)  market  definitions  in 

105  Paragraphs 7 to 9 of the Notice. 
106  Judgment of 30 September 2003, Atlantic Container Line AB and Others v Commission, T-191/98 and 
T-212/98 to T-241/98, EU:T:2003:245 (‘T-191/98 and T-212/98 to T-241/98, Atlantic Container Line 
AB  and  Others  v  Commission’),  paragraph  834.  See  also  judgment  of  13  May  2015,  Niki  Luftfahrt 
GmbH  v  Commission,  T-162/10,  EU:T:2015:283  (‘T-162/10,  Niki  Luftfahrt  GmbH  v  Commission’), 
paragraph 132, which quotes paragraph 24 of the Notice, which excludes potential competition from the 
market definition assessment, as the relevant framework for the assessment. 

107  See,  for  example,  T-427/08,  CEAHR  v  Commission,  paragraph  67–700;  judgment  of  4  July  2006, 
easyJet Airline Co. Ltd v Commission, T-177/04, EU:T:2006:187 ( ‘T-177/04, easyJet v Commission’), 
paragraph  99;  T-191/98  and  T-212/98  to  T-241/98,  Atlantic  Container  Line  AB  and  Others  v 
Commission, paragraph 834; and Case 322/81, Michelin v Commission, paragraph 37.  

108  See Summary of the NCA consultation. 
109  See Summary of the public consultation. 
110  See Summary of the public consultation. 

36 

 
                                                 
rapidly  evolving  markets;  (v)  asymmetric  constraints;  and  (vi)  the  assessment  of 
geographic  markets  in  conditions  of  globalisation  and  import  competition.  By  contrast, 
the Commission  services consider on the basis of the  evaluation results  that the Notice 
continues to provide correct, comprehensive and clear guidance with respect to (vii) the 
practice  of  assessing  potential  competition  at  the  competitive  assessment  and  not  the 
market definition stage. 

Temporal dimension  

Some  NCA  and  business  community  respondents  pointed  out  that  the  Notice  does  not 
describe the potential temporal dimension of market definition that has been considered 
in  certain  recent  Commission  cases111.  Commission  practice  shows  that  the  temporal 
dimension  may  be  relevant  in  some  cases  where  it  can  affect,  for  example,  consumer 
preferences or the structure of supply due to factors such as seasonality or peak vs off-
peak  time  considerations  related  to  capacity.  The  Commission  has  considered  the 
temporal dimension of market definition in certain recent cases112. 

Assessing substitution – SSNIP test 

The  SSNIP  test  is  a  possible  tool  for  assessing  demand  substitution 113.  It  consists  of 
assessing whether a hypothetical monopolist – which owns all companies producing the 
product(s)  which  is/are  the  candidate(s)  to  constitute  a  relevant  market  –  would  find  it 
profitable  to  increase  price  by  a  small  but  significant  amount  (in  the  range  of  5%  to 
10%). If such a price increase is profitable, the candidate products constitute the relevant 
market.  If  such  price  increase  is  unprofitable,  it  indicates  that  the  candidate  market 
should  be  enlarged  to  include  those  alternative  products  to  which  the  customers  would 
switch.  

Commission  practice,  and  the  findings  of  the  support  study,  show  that  the  SSNIP  test 
(and  other  forms  of  the  hypothetical  monopolist  test)  are  relied  on  by  the  Commission 
and  many  other  competition  authorities  around  the  world  in  their  guidance  and  market 
definition assessments in practice.114 Many respondents of both consultations underlined 
that  the  conceptual  framework  is  useful  in  guiding  the  assessment  of  demand-side 
substitution,  and  remains  an  important  and  useful  thought  experiment  when  defining  a 
relevant  market.  They  also  highlighted,  however,  that  the  SSNIP  test  often  cannot  be 
carried  out  in  practice  and  that  there  is  currently  no  guidance  in  the  Notice  on  how  to 
apply it to markets where price is not the only parameter of competition115.  

111  See Summary of the public consultation and Summary of the NCA consultation.  
112  See, for example, M.8869 – Ryanair/Laudamotion, where  summer and  winter season flight schedules 
were considered, and M.8870 – E.ON/Innogy, where a separate market was defined for retail supply of 
heating electricity predominantly consumed during off-peak times. 

113  As  detailed  in  the  Notice,  however,  when  supply-side  substitution’s  effects  are  equivalent  to  demand 
substitution  in  terms  of  effectiveness  and  immediacy,  they  may  also  be  taken  into  account  when 
defining  markets  and  so,  in  that  respect,  a  hypothetical  monopolist  or  SSNIP  test  may  also  rely  on 
supply substitution, as part of the analysis.  

114  See section 5.1.2 of the support study. 
115  Summary of the public consultation and Summary of the NCA consultation. 

37 

 
                                                 
The support study corroborated some of the points made and showed that the SSNIP test 
has some recognised limitations: for instance, it is inadequate for concentrated markets 
where  existing  prices  may  be  above  the  competitive  level  (known  as  the  ‘cellophane 
fallacy’); and it may produce multiple market definitions depending on the starting point, 
the  price  level,  price  differentiation  and  direction  of  widening  out  the  candidate 
products116.  

Several  NCAs  and  respondents  to  the  public  consultation  considered  that  while  these 
limitations  are  not  spelt  out  in  the  Notice,  they  are  particularly  true  as  regards  digital 
and, in particular, zero monetary price services. Some respondents took the view that 
to  accommodate  dynamics  in  digital  markets,  the  authorities  should  rely  on  other 
elements  besides a price test, such as the SSNDQ (‘small but  significant non-transitory 
decrease in quality’) or the SSNIC (‘small but significant non-transitory increase in cost’) 
tests 117 .  The  Commission  applied  the  SSNDQ  concept  in  a  recent  case  without 
quantifying  the  quality  deterioration  or  demand  response118.  In  the  context  of  market 
definition  in  multi-sided  platforms,  some  respondents  to  the  public  consultation  also 
considered  that  the  profitability  of  a  hypothetical  SSNIP  should  take  into  account  any 
network effects in multi-sided markets that result from the reaction of users on the other 
side of the market119. As highlighted by the support study, these indirect network effects 
can  give  rise  to  feedback  loops  between  the  different  sides  of  a  platform,  where  the 
higher the number of users is on one side, the higher is the value that users on the other 
side attribute to the platform120.  

Commission  practice  shows  that  the  SSNIP  test  has  guided  the  analytical  approach  in 
many  market  definition  assessments  and  that  the  Commission  has  often  collected 
evidence to investigate the extent of demand and supply substitution between products in 
response to a SSNIP121. That said, the Commission has  rarely  applied  the  SSNIP  test 
empirically. Moreover, a number of EU Court judgments have confirmed that there is no 
obligation on the Commission to do so, particularly because other types of evidence are 
equally  valid  ways  to  elucidate  the  market  definition122.  In  this  respect,  several  NCAs 
expressed the view that the Notice is not clear in that it does not set out the EU Courts’ 
findings that there is no obligation to carry out the test empirically123.  

116  See sections 6.1 and 3.1 of the support study. 
117  See  Summary  of  the  public  consultation  and  Summary  of  the  NCA  consultation.  The  support  study 
finds that similar dynamics can be observed in market definitions  where firms compete not (only) on 
price,  but  on  innovation  and  quality,  and  it  has  been  proposed  to  apply  the  SSNDQ  test  in  such 
situations; see Section 3.1.4 of the support study. 

118  See AT.40099 – Google Android. 
119  See Summary of the public consultation. 
120  See Section 3.1.2 of the support study. 
121  See, for instance, M.7995 – Deutsche Borse /LSE and M.8451 – Tronox/Cristal. 
122  See,  for  example,  T-699/14,  Topps  Europe  v  Commission,  paragraph  82;  and  T-380/17, 

HeidelbergCement and Schwenk Zement v Commission, paragraph 331.  

123  They also stressed that its quantitative implementation is very data-intensive and technically difficult. 
See Summary of the NCA consultation. Such comments are also in line with the guidance provided in 
other jurisdictions, such as in Australia, Canada and the UK. See Australian Competition and Consumer 

38 

 
                                                 
 
Finally,  some  respondents  from  the  business  community  to  the  public  consultation  and 
NCAs also mentioned the difficulties associated with the application of the SSNIP test in 
bidding markets, in particular in what concerns the identification of the relevant starting 
price for the application of the test, given that each tender results in a different price.124 
In  this  type  of  cases,  the  Commission  often  uses  qualitative  evidence  to  assess 
substitutability.125 

Supply substitution  

The  evaluation  results  suggest  that  the  Notice  adequately  describes  the  role  of  supply-
side substitution in market definition assessments, although there are some elements that 
lack clarity.  

The  Notice  explains  that  supply-side  substitution  may  be  taken  into  account  when 
defining  markets,  where  its  effects  are  equivalent  to  demand  substitution  in  terms  of 
immediacy and effectiveness126. The EU Courts have explicitly confirmed this principle 
by  finding  that  ‘[a]lthough,  from  an  economic  point  of  view,  demand  substitutability 
constitutes  the  most  immediate  and  effective  assessment  criterion  in  relation  to  the 
suppliers  of  a  given  product  […],  supply-side  substitutability  may  also  be  taken  into 
account  in  defining  the  relevant  market  with  regard  to  operations  in  which  that 
substitutability  has  effects  equivalent  to  demand  substitutability  in  terms  of  immediacy 
and effectiveness’127 and that ‘[s]ubstitutability must therefore be looked at not only from 
the  supply  side  but  also  from  the  demand  side,  which  remains,  in  principle,  the  most 
effective assessment criterion’128. 

This appears to reflect broader international consensus among competition authorities to 
put  emphasis  on  demand-side  substitution.  In  particular,  the  NCAs  shared  the  general 
view  in  the  consultation  that  demand-side  substitutability  is  the  primary  concept  in 
market  definition129.  This  was  further  supported  by  the  findings  of  the  support  study, 
which  reported  that  EEA  jurisdictions  tend  to  use  demand  substitution  as  the  primary 
factor  in  delimiting  the  geographic  market,  but  also  consider  supply  substitution  where 
supply-side effects can be demonstrated as imposing an effective competitive constraint 

Commission, Merger Guidelines, 2017, Competition Bureau, Canada, Merger Enforcement Guidelines, 
2011, and Office of Fair Trading, UK, Market Definition Guideline, 2004. 

124  See also OECD (2006), Competition in bidding markets. 
125  See for instance M.7278 – General Electric/Alstom and M.7555 – Staple/Office Depot. 
126  Paragraphs 13 and 20 of the Notice. 
127   T-446/05, Amann & Söhne and Cousin Filterie v Commission, paragraph 57. 
128   T-177/04, easyJet v Commission, paragraph 99; the General Court explicitly instructed that, both from 
an  economic  perspective  and  for  the  purposes  of  a  market  definition,  demand  substitution  constitutes 
the  most  immediate  and  effective  disciplinary  force  on  the  suppliers  of  a  given  product,  in  particular 
with respect to their pricing decisions. The court further explained that demand substitution ‘remains, in 
principle,  the  most  effective  assessment  criterion’,  and  concluded  that  in  that  particular  case 
(considering the substitutability between airports), it was not sufficient to look at supply substitutability 
but demand substitutability needed to be assessed. 

129   See Summary of the NCA consultation. 

39 

 
                                                                                                                                                 
 
on the behaviour of suppliers in the focal area130. In the US, supply-side substitutability is 
even explicitly excluded from market definition: According to the US Horizontal Merger 
Guidelines  ‘[m]arket  definition  focuses  solely  on  demand  substitution  factors,  i.e.  on 
customers’  ability  and  willingness  to  substitute  away  from  one  product  to  another  in 
response to a price increase or a corresponding non-price change such as a reduction in 
product  quality  or  service.’  The  US  Horizontal  Merger  Guidelines  acknowledge  the 
importance  of  supply-side  factors  for  the  competitive  assessment,  but  they  are  not 
addressed at the market definition stage131. 

In the public consultation, views were not equally unified. The majority of respondents 
either did not explicitly comment on the point or agreed that the importance assigned in 
the  current  Notice  to  supply-side  substitution  is  correct  and  should  be  maintained. 
Nevertheless,  some  representatives  of  the  business  community,  including  in  particular 
those active in digital products, suggested changes to the framework and considered that 
the  Commission  should  start  to  consider  supply  substitution  to  the  same  extent  as 
demand  substitution.  In  their  view,  this  would  better  take  into  account  significant 
innovation  and  technological  developments132.  On  the  basis  of  the  evaluation  results, 
however,  such  view  appears  to  conflict  with  best  practices  derived  from  the 
Commission’s  practice,  from  case-law  of  the  EU  Courts,  which  sets  out  binding 
principles  derived  from  economic  theory,  and  from  international  consensus  among 
competition authorities. 

Furthermore,  stakeholders  belonging  to  most  groups  of  respondents  argued  that  the 
Notice’s explanations of supply-side substitutability lacked some clarity. Several NCAs 
submitted  that  the  situations  where  supply-side  substitutability  is  applicable  to  market 
definition are not clarified in the Notice, for example, in connection with the concepts of 
‘significant  additional  costs’,  ‘short  term’,  ‘effectiveness  and  immediacy’,  and  ‘most 
suppliers’133.  Similarly,  a  business  association  submitted  in  the  public  consultation  that 
more examples and references to case-law would be helpful to clarify those terms134. 

Rapidly evolving markets 

The  evaluation  results  suggest  that  the  Notice  lacks  explanations  on  the  process  of 
defining markets in industries characterised by rapid technological progress, where newly 
developed products, services or processes change existing competitive dynamics.  

This  issue  was  raised  by  several  respondents  to  the  public  consultation,  as  well  as  by 
NCAs. In particular, several NCAs and respondents to the public consultation argued for 
the need to carry out dynamic assessments. Respondents to the public consultation also 

130  See Section 5.4 of the support study. 
131  See  Section  5.4  of  the  support  study.  The  guidelines  nonetheless  observe  that  ‘[i]f  …  supply  side 
substitution  is  nearly  universal  among  the  firms  selling  one  or  more  of  a  group  of  products,  the 
Agencies may use an aggregate description of markets for those products as a matter of convenience.’ 
US Horizontal Merger Guidelines, footnote 8. 

132  See Summary of the public consultation. 
133  See Summary of the NCA consultation. 
134  See Summary of the public consultation. 

40 

 
                                                 
submitted  that  substitution  evidence  from  past  shocks  and  switching  patterns  is  less 
relevant for market definition in rapidly evolving industries135.  

The support study136 and the Commission  practice  further suggest  that defining markets 
in  such  industries  may  indeed  raise  conceptual  particularities.  When  markets  are 
changing  in  the  short  term  and  substitution  possibilities  are  evolving  rapidly,  the 
Commission  does  not  rely  only  on  past  substitution  patterns  but  takes  the  expected 
changes  into  account  when  distinguishing  in  and  out-of-market  constraints 137 . 
Nonetheless, the Commission services consider on the basis of the evaluation results that 
the general principles of market definition apply to such markets as well. First, according 
to  EU  case-law,  it  is  also  important  in  rapidly  evolving  markets  to  have  effective 
substitution possibilities that translate into effective choices for customers – primarily on 
the  demand  side,  but  also  on  the  supply  side138.  Second,  those  substitution  possibilities 
must be available in the short term139, the specific time frame being industry- and case-
specific,  for  instance  depending  on  purchasing  patterns  or  production  and  innovation 
cycles.  Third,  the  Commission  needs  to  have  reliable  evidence  that  the  changes  will 
indeed happen. Fourth, the Commission can rely on a variety of sources of evidence in its 
assessment;  in  particular,  internal  documents  of  companies  and  evidence  from  industry 
experts are important sources of evidence, as quantitative variables are less likely to be 
available.  

135  See Summary of the public consultation and Summary of the NCA consultation. 
136   See Section 4 of  the  support study  with respect to  market  definitions  when innovation plays a  strong 

role. 

137  For instance, in M.9064 – Telia/Bonnier, the Commission concluded that all the different distribution 
technologies  of  audiovisual  (AV)  services  were  part  of  the  same  product  market  in  the  geographies 
under investigation. One of the reasons was that a majority of respondents to the market investigation 
considered the retail supply of over-the-top (OTT) AV services as an alternative to the retail supply of 
AV  services  via  another  technology  at  the  time  or  over  a  two  to  three-year  horizon.  In  the  case  of 
mobile telecommunications, for example in M.7018 – Telefonica Deutschland/E-Plus, the Commission 
did not distinguish a market by 2G, 3G and 4G technology even before 4G was effectively rolled-out on 
the basis that all suppliers in the market were likely to be able to offer 4G services in the near future 
(i.e. a majority of respondents indicated that 4G demand would increase by 20 to 30% in the next two 
to three years), thus supporting a high degree of supply-side substitutability between these services in 
the near future. 

138   T-177/04, easyJet v Commission, paragraph 99. 
139   The CJEU used the term ‘short period’ in a 2020 ruling in judgment of 30 January 2020, Generics (UK) 
Ltd  and Others  v  Competition  and  Markets  Authority  (‘CMA’),  C-307/18,  EU:C:2020:52  (‘C-307/18, 
Generics  (UK) and Others  v  CMA’),  when discussing  whether originator drugs and generics fell into 
the same product market: ‘As regards, in particular, the definition of the product market to which, for 
the possible application of Article 102 TFEU, an originator medicine belongs […], it is clear from the 
point  made  in  the  preceding  paragraph  of  the  present  judgment  that  a  supply  of  generic  medicines 
containing  the  same  active  ingredient  […]  could  lead  to  a  situation  where  the  originator  medicine  is 
considered,  in  the  professional  circles  concerned,  to  be  interchangeable  only  with  those  generic 
medicines  and,  consequently,  to  belong  to  a  specific  market,  limited  exclusively  to  medicines  which 
contain that active ingredient. Such a finding presupposes, however, in accordance with the principles 
set out in paragraph 129 of the present judgment, that there is a sufficient degree of interchangeability 
between  the  originator  medicine  and  the  generic  medicines  concerned.  Such  is  the  case  if  the 
manufacturers  concerned  of  generic  medicines  are  in  a  position  to  present  themselves  within  a  short 
period  on  the  market  concerned  with  sufficient  strength  to  constitute  a  serious  counterbalance  to  the 
manufacturer of the originator medicine already on the market’ (paragraphs 131–3, emphasis added). 

41 

 
                                                 
Asymmetric constraints 

The Commission’s previous decision practice indicates that situations can arise in which 
an asymmetry exists in the competitive pressure between products or geographies. This 
may imply that different relevant markets can be defined depending on the focal product 
or  focal  geographic  area 140 .  With  respect  to  those  specific  decisions  involving 
asymmetric  constraints,  the  EU  Courts  have  so  far  confirmed  the  Commission’s 
approach141. A number of NCAs highlighted during the evaluation, that the Notice does 
not  explicitly  refer  to  asymmetric  constraints,  nor,  consequently,  does  it  explicitly 
address  the  Commission’s  previous  decisional  practice  concerning  such  asymmetric 
constraints142. 

Assessment  of  geographic  markets  in  conditions  of  globalisation  and  import 
competition 

The  evaluation  results  indicate  that  the  Notice  overall  adequately  describes  the 
assessment  of  geographic  markets  in  the  context  of  globalisation,  including  in  markets 
where there is increased competitive pressure from imports. Nevertheless, the results also 
show that the Commission has gathered more and more experience in analysing markets 
that are potentially global or otherwise broader than the EEA over the years. 

By way of background, it should be recalled that following the Commission’s prohibition 
of the Siemens/Alstom transaction in 2019, some stakeholders called for a relaxation of 
the  EU  competition  rules.  With  regard  to  geographic  market  definition,  this  included 
calls from a limited number of stakeholders for wider market definitions, including more 

140  For  example,  in  AT.38233  –  Wanadoo  Interactive,  the  Commission  found  evidence  that  the  rate  of 
migration  from  ‘low  speed’  to  ‘high-speed’  was  significantly  higher  than  the  rate  of  migration  from 
‘high speed’ to ‘low speed’, which suggested highly asymmetric substitutability between the services. 
Also, on the one  hand, in M.6497  – Hutchison  3G  Austria/Orange  Austria, the Commission, starting 
from  mobile  data  services  as  the  focal  product,  found  that  there  was  only  limited  substitutability  for 
mobile  data  services  by  fixed  internet  access  services.  On  the  other  hand,  in  M.8808  –  T-Mobile 
Austria/UPC Austria, the Commission assessed whether mobile internet access services can be used to 
access  the  internet  at  home  in  the  same  way  as  fixed  connections  are  used,  and  concluded  that  the 
relevant  product  market  for  home  internet  access  services,  including  both  fixed  and  mobile 
technologies, could be defined as far as residential customers are concerned. 

141  In  judgment  of  30  January  2007,  France  Télécom  SA  v  Commission,  T-340/03,  EU:T:2007:22, 
paragraphs  88–91,  the  General  Court  confirmed  the  Commission’s  findings  in  AT.38233  –  Wanadoo 
Interactive  and  stated  that  ‘the  operation  of  such  substitutability  is  extremely  asymmetrical,  the 
migrations of customers from offers of high-speed to low-speed access being negligible compared with 
the  migrations  in  the  other  direction.  However,  according  to  the  Commission,  if  the  products  were 
perfectly substitutable from the point of view of demand, the rates of migration should be identical or at 
least  comparable.  [...]  Consequently,  on  the  basis  of  all  the  foregoing,  it  should  be  held  that  the 
Commission was right to find that a sufficient degree of substitutability between high-speed and low-
speed access did not exist and to define the market in question as that of high-speed internet access for 
residential  customers’.  In  its  judgment  of  1  July  2010,  AstraZeneca  AB  and  AstraZeneca  plc  v 
Commission, T-321/05, EU:T:2010:266, paragraph 97, the General Court found that ‘[...] the fact that 
PPIs  exercised  a  considerable  competitive  constraint  over  H2  blockers  and,  consequently,  that  PPIs 
belonged  to  the  H2  blocker  market  between  1991  and  2000  is  irrelevant  in  the  context  of  this  case, 
since  it does  not  mean that H2 blockers exercised a significant competitive constraint over PPIs and, 
therefore, that H2 blockers belonged to the PPI market’. 

142  See summary of the NCA consultation. 

42 

 
                                                 
global  markets.  According  to  those  suggestions,  the  widening  of  geographic  market 
definitions would make mergers between European companies easier. By contrast, other 
voices  called  for  a  prohibition  of  the  Siemens/Alstom  transaction  and  more  generally 
advocated  continued  rigorous  competition  law  enforcement  to  the  benefit  of  European 
businesses  and  consumers,  arguing  among  other  points  that  competition  (and  not  a 
relaxation of competition) promotes competitiveness. 

As  explained  in  Section  2.2,  under  the  established  geographic  market  definition 
methodology  as  endorsed  by  the  EU  Courts,  where  competitive  conditions  are 
sufficiently  homogeneous  between  two  areas,  these  areas  will  be  included  in  the  same 
geographic  market.  Conversely,  where  competitive  conditions  are  not  sufficiently 
homogeneous  between  two  areas,  these  areas  will  be  included  in  separate  geographic 
markets.  Past  Commission  practice  shows  that,  irrespective  of  the  conclusion  on  the 
scope of the areas included in the geographic market, competitive pressure from imports 
is fully taken into account in the competitive assessment, including in the calculation of 
market  shares  and  in  assessing  the  prospects  of  further  expansion  in  the  future.  This 
aspect of taking into account competition from imports is not explained explicitly in the 
Notice. 

The evaluation results also highlight that market definitions are not static over time, but 
reflect  market  developments 143 .  In  fact,  in  line  with  the  trend  for  increasing  inter-
connectedness  of  economies,  there  is  evidence  to  suggest  that  as  globalisation  has 
intensified,  the  Commission  has  used  wider  geographic  market  definitions  more 
frequently  in  its  decisions.  While  in  1992–2004,  the  Commission  assessed  a  global 
market  as  one  of  the  plausible  markets  in  approximately  20%  of  merger  cases  with 
affected markets, in 2005–2018 the share rose to approximately 30%144. Looking in more 
detail,  the  Commission  assessed  a  global  market  in  circa  15%  of  merger  cases  with 
affected markets in 1992–1996, while that share rose to circa 24% 10 years later (2002–
2006) and to ca. 27% 20 years later (2012–2016). Such evolutions can also be observed 
in some of the Commission’s subsequent decisions in the same industry145.  

143  For  examples  of  cases  where  the  geographic  scope  of  the  relevant  market  has  been  revised  in 
Commission  decisions,  see  DG  Competition,  ‘Market  definition  in  a  globalised  world’,  Competition 
policy brief, Issue 2015(12), 2015. 

144  Similarly, the Commission considered  markets to be  wider than the EEA in ca. 56% of mergers  with 

affected markets in 1992–2004, compared to ca. 62% in 2005–2018.  

145  See,  for  example,  AT.38698  –  CISAC  Agreement,  where  the  Commission  took  the  view  that  the 
geographic  scope  of  copyright  administration  services  provided  to  CMO  members  was  national. 
However,  the  Commission  considered  in  relation  to  the  geographic  scope  of  inter-CMO  services  that 
‘[t]he  geographic  scope  of  the  market  for  the  provision  of  copyright  administration  services  to  other 
public  performance  rights  collecting  societies  has  both  a  national  aspect  and  wider  cross-border 
elements’, explaining that in the absence of the restrictions contained in the RRAs CMOs would be able 
to  grant  multi-territorial  licences.  Later,  in  a  merger  decision,  M.6800  –  PRSfM/STIM/GEMA/JV,  the 
Commission considered that,  as the  restrictions contained in the  RRAs  were removed, the  market  for 
the  provision  of  copyright  administration  services  was  EEA-wide  in  scope.  Also,  in  M.580  – 
ABB/Daimler-Benz, the Commission concluded on a national market for rail technology due to national 
or  regional  specifications.  The  Commission  nevertheless  explained  that  the  ‘current  efforts  to  align 
technical  conditions  in  rail  technology  throughout  the  Community  suggest  that  the  situation  may 
change in the future‘. Later, in M.5754 – Alstom Holdings/Areva T&D, the Commission concluded that 

43 

 
                                                 
 
NCAs were supportive of the Notice’s guidance on geographic markets in the context of 
globalisation and import competition, and they did not raise concerns on this point in the 
consultation. Nonetheless, one NCA noted that the Notice could be clearer by referring to 
the possibility of defining global markets more explicitly146. The views expressed by the 
respondents to the public consultation were more split147. While most respondents did not 
explicitly  comment  on  the  question,  some  respondents  to  the  public  consultation, 
including those from the business community and civil society, suggested that the Notice 
should  reflect  global  competition  more,  in  particular  in  the  context  of  rapidly  evolving 
markets  and  including  the  possibilities  brought  about  by  digitisation 148.  Nonetheless, 
other respondents, including those from the business community, explicitly rejected the 
idea that the Commission should change its approach or the Notice in this respect149. 

The evaluation results overall suggest that the approach set out in the Notice allows the 
Commission to reflect market developments, as shown in individual cases, including by 
taking into account competition from imports, although this is not set out explicitly in the 
Notice.  Moreover,  while  the  Notice  already  includes  an  explicit  reference  to  increased 
market  integration  in  the  Union 150 ,  it  does  not  include  explicit  references  to  the 
Commission’s practice on global markets.  

While  going  beyond  the  purpose  of  this  evaluation,  it  may  be  useful  to  note  in  this 
context  that  Professors  Fletcher  and  Lyons  saw  no  need  for  the  Commission  to 
fundamentally revise its methodology when they analysed the Commission’s approach in 
2017.  They  did  make  a  number  of  technical  suggestions  for  improvements  or 
clarifications,  however,  namely:  (i)  that  there  should  be  greater  clarity  in  Commission 
decisions  that  market  definition  is  not  an  end  in  itself  but  a  first  step  that  provides  a 
useful framework for the competitive analysis; and (ii) that the Commission should rely 

the market was at least EEA-wide due to the construction of high speed freight lines and trains which 
cross  Member  States,  the  existence  of  various  packages  of  legislation  and  initiatives  such  as  the 
European Rail Traffic Management System, the adoption of technical specifications for interoperability 
of rail networks, and the implementation of multi-country rail projects. A further example is the supply 
of certain mining equipment: In its 2000 decision M.2033 – Metso/Svedala, the Commission found that 
the  relevant  geographic  market  for  crushers  sold  to  mining  customers  was  EEA-wide  in  scope. 
However,  twenty  years  later  in  its  2020  decision  M.9585  –  Outotec/Metso  (Minerals  business),  the 
Commission found that the companies' activities overlapped in the supply of capital equipment for the 
mining industry at worldwide level.  
146  See Summary of the NCA consultation. 
147  See Summary of the public consultation. 
148 For example, a civil society association explained that global competition with third countries plays an 
increasing  role  and  that  the  Notice  needs  to  be  adapted  in  order  to  strengthen  the  competitiveness  of 
European companies compared to those of third countries.  

149  For example, a business association representing both large companies and SMEs explained that it saw 
no apparent need for major changes of the method or perspective when assessing the impact of global 
competition, observing that the assessment needs to continue to be fact-based and not rely on uncertain 
predictions of the future. Summary of the public consultation.  

150  Paragraph 32 of the Notice. 

44 

 
                                                                                                                                                 
 
mainly  on  demand-side  substitution  at  the  market  definition  stage  and  address  supply-
side substitutability mainly at the competitive assessment stage151.  

Potential competition 

As explained in Section 2.2, the Notice distinguishes between demand-side and supply-
side substitutability, which is assessed at the market definition stage of the assessment152, 
and potential competition which is analysed under the competitive assessment, as per the 
criteria set out in the Horizontal Merger Guidelines153. Both supply-side substitution and 
potential competition rely on new supply becoming available, but they differ in terms of 
immediacy and switching dynamics154.  

The  Commission’s  practice  of  considering  potential  competition  in  competitive 
assessment  but  not  in  market  definition  is  in  line  with  the  practice  of  all  NCAs155 and 
international  consensus;  and  has  found  support  in  the  EU  Courts’  case  law,  which  has 
affirmed the difference between supply substitution and potential competition156.  

Nevertheless,  some  respondents  to  the  public  consultation,  including  those  from  the 
business  community,  argued  that  the  Commission  should  start  considering  potential 
competition  at  the  market  definition  stage  together  with  supply  substitution  in  order  to 
take better account of potential competition, for example in digital markets157.  

5.2.3.  Evidence to define markets 

The evaluation results indicate that the Notice generally provides correct, comprehensive 
and clear guidance as to the main evidence used to define markets.  

151  Fletcher, A., and Lyons, B., Geographic Market Definition in European Commission Merger Control, 

Centre for Competition Policy, Norwich, 2016.  

152  Supply-side  substitution  may  be  taken  into  account  when  defining  markets,  where  its  effects  are 
equivalent to demand substitution in terms of immediacy and effectiveness. See paragraphs 13 and 20 
of the Notice. 

153   Guidelines  on  the  assessment  of  horizontal  mergers  under  the  Council  Regulation  on  the  control  of 
concentrations between undertakings, OJ C31, 5.2.2004, (’Horizontal Merger Guidelines,’) section on 
‘Merger with a potential competitor’, paragraphs 58-60, and section on ‘Entry’, paragraphs 68–75. 
154  Both supply substitution and potential competition have the capability to affect the outcome of a case. 
Where  there  is  supply  substitutability  and  it  constitutes  a  sufficiently  immediate  and  effective 
constraint, the market will include additional competitors of the undertaking involved that may be able 
to  effectively  constrain  its  behaviour  in  the  market  immediately.  Potential  competition  in  turn  may 
provide such a strong future competitive force that it prevents market power from materialising. To that 
effect, see for example Case M.8744 – Daimler/BMW/Car Sharing, where, despite market shares above 
90% in the car sharing markets in Berlin, the Commission considered that the transaction did not raise 
serious doubts given the entry plans of several other car sharing services. 

155  The NCAs agreed that the distinction between potential competition and supply substitution continues 
to be applicable as it makes a relevant distinction between actual competitors on the market today and 
more distant or future competitors. See also summary of the ECN meetings in Annex 2.2.4. 

156  T-191/98 and T-212/98 to T-241/98, Atlantic Container Line AB and Others v Commission, paragraph 
834. See also T-162/10, Niki Luftfahrt GmbH v Commission, paragraph 132, which quotes the Notice’s 
paragraph  24,  which  excludes  potential  competition  from  the  market  definition  assessment,  as  the 
relevant framework for the assessment. 

157  See Summary of the public consultation and Summary of the NCA consultation. 

45 

 
                                                 
However, the evaluation results also suggest that the Notice does not reflect refinements 
to  the  Commission’s  approach  stemming  from  Commission  practice  following  the 
Notice’s  adoption.  These  relate  in  particular  to:  (i)  quantitative  techniques;  (ii)  barriers 
and  switching  costs  (in  the  context  of  digitisation);  (iii)  the  assessment  of  trade  flows; 
(iv)  the  assessment  of  price  differences  in  geographic  market  definition;  (v)  the 
assessment of price discrimination; and (vi) the use of companies’ internal documents. 

The Notice describes a number of factors taken into account in market definition, as well 
as the sources of information used by the Commission to assess those factors.  

The evaluation results indicate that the Notice provides correct, comprehensive and clear 
guidance  as  to  the  evidence  to  define  markets,  though  with  certain  reservations.  The 
evaluations results suggest that not all refinements to the Commission’s approach since 
the adoption of the Notice are reflected in it.  

Quantitative techniques 

The  Notice  refers  to  different  quantitative  methods  to  determine  the  product  market. 
These are: natural experiments, consumer surveys, price co-movement analysis and more 
complex applications of the SSNIP test via estimation of the elasticity of demand158. 

Several  NCAs mentioned the development  of quantitative techniques  and the increased 
availability of data as assisting market definition today. Some respondents to the public 
consultation, such as those from the business community, noted that more weight should 
be  given  to  economic  analysis  and  the  more  sophisticated  quantitative  techniques 
developed since 1997 relative to qualitative factors. Some also suggested that consumer 
surveys (provided they are rigorously carried out to rule out bias) are a relevant source of 
evidence that should be used more often159. 

The support study suggests that quantitative techniques have been improved in terms of 
their reliability and robustness since the Notice’s adoption. For example, the importance 
of shocks being exogenous is now particularly stressed for natural experiments to provide 
meaningful  results 160 .  Further,  some  improvements  have  been  introduced  in  the 
application of price tests161. In addition, the support study discusses critical loss analysis, 
which  is  not  mentioned  in  the  Notice.  Critical  loss  analysis  is  a  methodology  to 
implement the SSNIP that has been used in some cases and that is relatively simple and 
not demanding in data (being mostly based on aggregate diversion ratios and margins162). 
Other aspects highlighted in the evaluation results which are not explicitly included in the 
Notice are that: (i) all these methods have their own strengths and also suffer from certain 
drawbacks, which makes their application case-specific; and (ii) they may  be used as  a 
complement to the qualitative evidence collected. 

158  Paragraph 39 of the Notice. 
159  See Summary of the public consultation and Summary of the NCA consultation. 
160  See Section 6.1.2 of the support study. 
161  See Section 6.3 of the support study. 
162  See,  for  instance,  the  application  of  critical  loss  analysis  in  M.4734  –  Ineos/Kerling  and  M.9076  – 

Novelis/Aleris. See also application by NCAs described in Section 6.1.1 of the support study. 

46 

 
                                                 
Barriers and switching costs  

Respondents pointed out that the Notice does not cover some sources of barriers to entry 
and  switching  costs  that  are  becoming  relevant  in  the  context  of  digitisation.  Such 
elements include the use of data, interoperability, privacy, network effects, ‘ecosystems’ 
and  multi-homing.  In  its  most  recent  practice,  the  Commission 163 ,  as  well  as  other 
NCAs164,  have  taken  into  account  these  elements  in  defining  relevant  markets  –  even 
though they are not explicitly reflected in the Notice 

Trade flows 

Certain  NCAs  pointed  out 165 that  while  the  Notice  observes  that  trade  flows  are  not 
conclusive for market definition166, this is not expressed as prominently in the Notice as 
it is reflected in practice. For example, considerable imports do not necessarily result in 
the expansion of a geographic market definition while the lack of such imports does not 
necessarily  prevent  such  expansion  either,  but  all  other  relevant  factors  are  considered 
together  with  import  flows  before  the  Commission  reaches  a  conclusion 167 .  Similar 
approaches are found in other jurisdictions discussed in the support study168. Fletcher and 
Lyons go even further and recommend that the Commission should clarify that there is 
no  ‘magic  number’  for  existing  import  levels  within  a  market  that  would  to  lead  to  a 
situation where no competition concerns can be found169. 

Several  NCAs  and  respondents  to  the  public  consultation  further  pointed  out  that  the 
Notice  does  not  discuss  the  framework  for  defining  local  markets  on  the  basis  of 
catchment areas drawn around suppliers or customers170. According to the support study, 
few  NCAs  directly  comment  on  the  use  of  catchment  areas  in  their  public  guidelines, 
although  there  are  several  examples  of  the  application  of  this  technique  in  their 
practice171.  In  its  practice,  the  Commission  has  applied  the  catchment  area  approach  to 
defining  the  relevant  geographic  markets  in  cases  where  the  distance  between  the 

163  See,  for  instance,  the  assessment  of  the  relevant  markets  in  AT.40099  –  Google  Android,  where  the 
Commission  took  into  account  the  presence  of  indirect  network  effects,  multi-homing  and 
interoperability. In AT.39740 – Google Shopping, the Commission observed that ‘there are a number of 
differences  in  the  technical  features  of  specialised  and  general  search  services  [which]  often  rely  on 
different sources of data’. 

164  See Section 3 of the support study. 
165 See Summary of the NCA consultation. 
166  Paragraphs 49 and 50 of the Notice. 
167  As an example, the Commission found in M.8444 – ArcelorMittal/Ilva that there were imports of flat 
carbon  steel  products  into  the  EEA  (and  also  exports  out  of  the  EEA).  However,  the  Commission 
further found that customers sourced to a very large extent inside the EEA, that sourcing from imports 
was limited by non-price  factors and that imports could not fully  substitute EEA supplies.  In light of 
that, and considering that the conditions of competition were not homogenous inside or outside of the 
EEA,  the  Commission  concluded  that  the  relevant  markets  were  not  wider  than  the  EEA,  despite  the 
trade flows.  

168  Although trade flows are among the main factors to be taken into account by NCAs in the geographic 

market definition process. See section 5.2.2 of the support study.  

169 See  Fletcher,  A.,  and  Lyons,  B.,  Geographic  Market  Definition  in  European  Commission  Merger 

Control, Centre for Competition Policy, Norwich, 2016. 

170  See Summary of the public consultation and Summary of the NCA consultation. 
171 See Section 6.4 of the support study. 

47 

 
                                                 
location  of  the  supplier  and  the  location  of  the  customer  matters  for  purchasing 
decisions172. This includes cases where the relative transport costs are high, where travel 
inconveniences  are  significant  compared  to  the  value  of  the  product,  where  security  of 
supply  is  important,  or  where  the  product’s  technical  qualities  limit  its  transportability. 
The  support  study  explains  that  this  method  is  particularly  prominent  in  competition 
cases  concerning  bricks-and-mortar  retailers,  where  location  and  transport  costs  are 
important considerations in consumer behaviour173. The Notice does not explicitly clarify 
that the catchment area approach may be appropriate when defining local markets, which 
are also not currently referenced in the text of the Notice. 

Price differences related to geographic markets 

The  support  study  notes  that  price  differences  are  one  of  the  main  factors  taken  into 
account  by  NCAs  in  the  geographic  market  definition  process174.  The  Notice  currently 
observes in paragraph 28 that price differences are taken into account in the assessment 
of geographic markets although no reference to price differences is made in the Notice’s 
related  evidence  section  (paragraphs  44–52).  In  its  practice,  the  Commission  regularly 
assesses  price  differences  and  the  underlying  reasons  for  those  price  differences  when 
defining geographic markets.175 

Price discrimination 

A large majority of respondents to the public consultation and NCAs confirmed that the 
Notice (fully or partially) provides correct, comprehensive and clear guidance as regards 
price  discrimination  and  customer  markets  as  evidence  to  define  the  relevant  product 
market,  as  detailed  in  the  Notice.  However,  some  NCA,  civil  society  and  business 
community respondents  considered that  the Notice does not  provide adequate  guidance 
on  personalised  pricing  and  that  features  such  as  e-commerce  and  platforms  should  be 
taken  into  account  when  assessing  the  possibility  of  defining  markets  for  different 
categories of customers because of price discrimination176.  

Companies’ internal documents 

The  Notice  makes  certain  references  to  internal  documents  of  companies,  such  as 
marketing  studies,  as  a  source  of  information  used  by  the  Commission  to  assess  the 

172  See, for example, M.7878 – HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia where, on the 
basis of 90% of actual deliveries of cement both for the Parties and for competitors, the Commission 
concluded on catchment areas of around 250 km around the Parties’ cement plants. 

173 See Section 6.4 of the support study. 
174 See Section 5.2 of the support study. 
175  For  example  in  M.7155  –  SSAB/Rautaruukki,  the  Commission  observed  that  there  were  substantial 
price  differences  between  the  Nordic  countries  and  the  rest  of  the  EEA  for  certain  flat  carbon  steel 
products, and that the differences varied between different products in the sense that they were higher 
in products where the merging parties had a strong market position. That information was one piece of 
information used to substantiate the finding that there was at least a serious possibility that the Nordic 
countries  constituted  a  distinct  geographic  market.  M.8792  –  T-Mobile  NL/Tele2  NL  illustrates  how 
price  discrimination  could  lead  to  a  narrow  product  market  definition  in  the  telecommunication 
industry. 

176  See Summary of the public consultation and Summary of the NCA consultation. 

48 

 
                                                 
factors  relevant  for  market  definition 177 .  These  may  include,  for  example,  market 
research studies, marketing studies or any other document that discusses factors relevant 
to  market  definition such as the comparison  of  products  and benchmarking, purchasing 
patterns of customers, research and development studies, or consumer preferences. 

Nonetheless, some respondents to the public consultation considered that while internal 
documents  are  often  used  by  the  Commission  in  its  assessment,  their  use  is  not 
mentioned  in  the  Notice,  and  some  business  respondents  also  cautioned  against 
misinterpretations related to internal documents.178 

5.2.4.  Market shares 

The  evaluation  results  indicate  that  the  Notice  overall  provides  correct,  comprehensive 
and  clear  guidance  on  the  calculation  of  market  shares,  including  on  the  variables  and 
sources most often used to calculate this indicator of market power.  

The evaluation results indicate, however, that the Notice does not provide comprehensive 
guidance  on  Commission  practice  regarding  the  metrics  that  can  be  used  in  digital 
markets,  where  the  traditional  volume  and  value  metrics  are  not  applicable  or  the  best 
indicators.  In  addition,  the  treatment  of  captive  sales,  imports  and  sales  of  supply 
substitution  players  is  not  mentioned  in  the  Notice  with  respect  to  the  calculation  of 
market  shares.  Finally,  according  to  the  evaluation  results,  the  Notice  does  not  discuss 
the time period by reference to which market shares are calculated. 

Moreover,  the  evaluation  results  show  that  although  the  section  on  market  share 
calculation strictly speaking exceeds market definition questions, it discusses points that 
are not discussed in other Commission’s guidelines and as such contributes to providing 
comprehensive guidance to stakeholders.  

The  Notice  provides  guidance  on  calculating  market  shares.  The  guidance  consists  in 
listing the information sources that can be used and explaining that, when these are not 
available  or  reliable,  the  Commission  may  ask  each  supplier  in  the  relevant  market  to 
provide  its  own  sales  in  order  to  calculate  total  market  size  and  market  shares.  The 
Notice further notes that elements other than sales can be used as a basis for calculating 
market shares, including capacity and reserves. The Notice also adds that in the case of 
differentiated  products,  a  market  share  calculated  on  the  basis  of  value  will  usually  be 
considered to better reflect the relative position and strength of each supplier. 

The evaluation results indicate that the Notice provides correct and clear guidance on the 
variables  most  often  used  to  estimate  market  shares.  As  a  general  rule,  and  as 
indicated in the Notice, market shares are calculated on the basis of the value or volume 
of  sales.  In  certain  circumstances,  these  may  be  complemented  by  the  calculation  of 

177  Paragraph 41 of the Notice. 
178 See Summary of the public consultation. 

49 

 
                                                 
market  shares  by  reference  to  other  elements,  for  example  capacity  and  reserves179.  A 
large  majority  of  respondents  to  the  public  consultation  and  NCAs  confirmed  that  the 
Notice provides correct, comprehensive and clear guidance on the calculation of market 
shares180. 

Nevertheless,  the  evaluation  results  also  indicate  that  the  Notice  may  not  be  fully 
comprehensive in this matter since it does not clarify what type of metrics should be used 
in  the  case  of  services  provided  in  multi-sided  platforms,  at  a  zero  monetary  price,  in 
‘digital  ecosystems’  and  data  markets181.  With  digitisation  and  the  emergence  of  zero-
monetary-price products/services, the Commission’s decisional practice increasingly uses 
metrics not explicitly mentioned in the Notice, such as number of active users, number of 
web visits, number of downloads and number of transactions182. These indicators are also 
used by NCAs, as described in the support study183. 

Some  respondents  from  the  business  community  and  NCAs  also  noted  that  the  Notice 
does  not  provide  comprehensive  guidance  on  the  treatment  of  in-house  sales,  or 
situations  where  market  participants  are  not  active  or  located  in  the  market 
(including imports)184. Several respondents from the business community also indicated 
that  static  market  shares  are  not  a  good  indicator  in  rapidly  evolving  markets,  in 
particular  where  innovation  plays  a  strong  role185.  In  this  respect,  Commission  practice 
indicates  that,  where  relevant,  imports  are  included  in  the  market  share  calculation  in 
order  to  account  for  the  constraint  exercised  by  this  source  of  supply186.  In  the  case  of 
imminent entry, the Commission has also relied on estimating firms’ hypothetical market 
shares  after  entry 187.  However,  when  this  is  not  possible  to  do  in  reliable  way,  the 
Commission  has  recognised  that  the  available  market  shares  (limited  to  existing 
products) were less informative188. 

179  See,  for  instance,  the  use  of  capacity  shares  in  M.5978  –  GDF  Suez/International  Power,  M.7744  – 
HeidelbergCement/Italcementi  and  M.4000  –  Inco/Falconbridge.  In  M.4000  –  Inco/Falconbridge, 
market shares were also estimated based on reserves. 

180  See Summary of the public consultation and Summary of the NCA consultation. 
181  See Summary of the public consultation and Summary of the NCA consultation. 
182  For instance in  AT.40099 – Google Android in relation to the market for general search services, the 
Commission used market shares considering different indicators, e.g. number of page views, number of 
site visits; similarly, in the market for Android app stores, the Commission used market shares based on 
user-side metrics (e.g. pre-installation of the app store and downloads from the app store). In M.7217 – 
Facebook/WhatsApp,  for  social  network  services  or  consumer  communication  services, 
the 
Commission relied on market shares calculated based on number of unique users.  

183  Section 3.1.4 of the support study. 
184  See Summary of the public consultation and Summary of the NCA consultation. 
185  See Summary of the public consultation. 
186  For example, in M.8444 – ArcelorMittal/Ilva. 
187  For  example,  in  M.1806  –  Astra  Zeneca/Novartis,  on  the  basis  of  sales  forecasts  for  a  soon  to  be 
introduced product by Astra Zeneca, the Commission assigned market shares in one product market to 
it. 

188  For instance, in M.7932 – Dow/DuPont, where in several markets there were pipeline products about to 
be launched, the Commission explained that the market shares provided did not take into consideration 
the impact of these new products, which the Commission considered to be relevant for the competitive 
assessment. 

50 

 
                                                 
The evaluation results indicate that the Notice provides correct and clear guidance on the 
sources  for  the  calculation  of  market  shares.  The  Commission  applies  the  practice 
outlined  in  the  Notice  of  using  market  share  information  provided  by  the  companies 
involved.  The  Commission  additionally  relies  on  other  sources  such  as  studies 
commissioned from industry consultants and reports from trade associations as indicated 
in the Notice, but also on the internal documents of the companies involved. As indicated 
in  the  Notice,  where  no  reliable  estimates  or  other  data  sources  are  available,  a  market 
reconstruction based on requests for information from the relevant market participants (in 
most cases competitors) is often used189.  

The preference given to value shares in the case of differentiated markets, as suggested 
by the Notice, has also been common Commission practice. However, as the evaluation 
also indicates, in many cases where there is a significant degree of product differentiation 
in a relevant market, the Commission has also relied on shares calculated for segments of 
the market190. 

Some  respondents  from  the  business  community  indicated  that  the  Notice  does  not 
provide guidance as to the time period to be applied when calculating market shares, 
in  particular in  the case  of bidding markets  or more  generally  in  the case of infrequent 
purchases,  where  it  may  be  appropriate  to  calculate  market  shares  by  reference  to  a 
longer period191. 

Finally,  two  NCAs  explained  that  more  guidance  is  needed  about  the  role  of  market 
shares.  Three  NCAs  explained  that  ‘market  shares’  is  a  static  concept  and  should  be 
complemented  with  elements  about  the  dynamics  of  an  industry.  In  contrast,  one  NCA 
argued that the calculation of market shares does not fit well in the Notice since it is 
already part of the competitive assessment192. The evaluation results indicate a close link 
between  market  definition  and  the  calculation  of  market  shares  as  described  above 
(although strictly speaking they exceed market definition questions) and that since other 
Commission  guidelines  do  not  include  extensive  guidance  on  the  calculation  of  market 
shares,  the  market  share  section  contributes  to  providing  comprehensive  guidance  to 
stakeholders.  

189  For  instance,  in  M.7265  –  Zimmer/Biomet,  the  Commission  supplemented  the  material  from  the 
industry  association  Eucomed’s  database  by  sending  requests  for  information,  following  the  same 
template  as  Eucomed,  to  several  market  participants.  See  also  market  reconstruction  exercises  in 
M.9409 – Aurubis/Metallo, M.5778 – Novartis/Alcon and M.6576 – Munksjo/Ahlstrom. 

190  For  example,  in  M.5658  –  Unilever/Sara  Lee,  the  Commission  used  segment  shares  for  non-male 
deodorants, namely skin care, fragrance, anti-perspirant; in M.3169 – Orange/Jazztel, the Commission 
considered  different  customer  types  (business  vs  residential)  and  speed  segments  for  fixed  internet 
access; in M.9076 – Novelis/Aleris, the Commission relied on segment shares of Aluminium ABS and 
in M.7278 – General Electric/Alstom, the Commission assessed segments of the market for heavy duty 
gas turbines on the basis of power output.  

191  See Summary of the public consultation. 
192  See Summary of the NCA consultation. 

51 

 
 
                                                 
5.2.5.  Additional considerations 

The  evaluation  results  indicate  that  the  Notice’s  final  section  largely  provides  correct, 
comprehensive and clear guidance in relation to aftermarkets and chains of substitution. 
Nevertheless, the evaluation results indicate that there may be scope for some additional 
clarity  and  explanations  for  a  better  understanding  of  Commission  practice  in  these 
matters. 

Furthermore,  the  results  indicate  that  there  are  other  market  realities,  currently  not 
explicitly  referred  to  in  the  Notice,  where  ‘the  application  of  the  principles  [of  market 
definition] has to be undertaken with care’. These include: (i) digital markets, namely in 
relation  to  multi-sided  platforms  and  services  offered  at  a  zero-monetary  price, 
‘ecosystems’,  data  and  online  channels;  and  (ii)  non-price  competition,  including 
innovation. 

The Notice provides guidance in relation to two specific topics, namely aftermarkets and 
chains of substitution, where ‘the application of the principles [of market definition] has 
to  be  undertaken  with  care’193.  The  evaluation  results  indicate,  however,  that  there  are 
further topics where those principles similarly may have to be applied with care due to 
specific market dynamics, including digital markets and innovation194. 

Aftermarkets  

An  aftermarket  arises  where  the  consumption  of  a  certain  durable  product  (primary 
product) leads to the subsequent purchase of another product(s) (secondary product). The 
evaluation  results  indicate  that  the  Notice  adequately  reflects  Commission  practice  by 
mentioning three possible ways to define relevant markets in relation to aftermarkets: (i) 
as  a  system  market  comprising  both  the  primary  and  the  secondary  product;  (ii)  as 
multiple markets, namely a market for the primary product and separate markets for the 
secondary products associated with each version of the primary product and; (iii) as dual 
markets, namely the market for the primary product on the one hand and the market for 
the secondary product on the other hand195.  

A large majority of respondents to the public consultation and NCAs confirmed that the 
Notice  provides  correct,  comprehensive  and  clear  guidance  as  regards  aftermarkets. 
Some respondents from the business community and NCAs indicated, however, that the 
Notice  does  not  fully  reflect  the  most  recent  judgment  (T-427/08,  CEAHR  v 
Commission) and decisional practice in this field196. In particular, the evaluation results 
suggest that not all factors taken into account in the assessment are explicitly described in 
the  Notice.  In  practice,  according  to  the  evaluation  results,  the  judgment  in  T-427/08, 

193  Paragraphs 56 to 58 of the Notice. 
194  Other  topics  also  mentioned  have  already  been  covered  in  previous  sections,  namely  price 

discrimination, asymmetric constraints, product differentiation and bidding markets. 

195  Paragraph 56 of the Notice. 
196  See Summary of the public consultation and Summary of the NCA consultation. 

52 

 
                                                 
CEAHR v Commission, Commission practice197, guidance papers of other jurisdictions198 
and  academic  literature199 suggest  other  relevant  factors  not  included  in  the  Notice  that 
could  be  taken  into  account  in  determining  whether  there  is  a  system  market,  whether 
there are multiple secondary markets or whether there are dual markets. 

The  evaluation  results  also  show  that  the  paragraph  on  aftermarkets  in  the  Notice  does 
not refer to  ‘digital  ecosystems’ even if they have been considered in case practice, as 
submitted by several  respondents to the public consultation  and NCAs, and are gaining 
importance  following  the  most  recent  technological  convergence200.  In  terms  of  market 
definition, the support study explains that digital ecosystems can, in particular in the case 
of user facing services, assume the form of aftermarkets and be thought of as a primary 
core product and several secondary (digital) products, whose complementarity is due to 
technological links or interoperability between products201. 

In  the  context  of  the  technological  convergence,  some  respondents  from  the  business 
community  and  NCAs  also  mentioned  that  the  Notice  does  not  explicitly  indicate  the 
treatment given to complementary products and products sold in a bundle. Commission 
practice  shows  that  in  markets  where  multiple  goods  or  services  are  jointly  demanded 
and  supplied,  referred  to  as  cluster  markets,  under  certain  circumstances,  it  is  also 
possible to include in the same relevant market complementary products202. 

Chains of substitution  

The Notice explains that in certain markets it is possible for two (or more) products (or 
geographic  areas)  that  are  not  direct  substitutes  to  be  included  in  the  same  relevant 
market due to a sequence of substitute products/geographic areas between them – a chain 
of substitution203. This is  the case if substitution takes the form  of successive iterations 
throughout the chain, which justifies the inclusion of each product or geographical area 
in the market. 

A large majority of respondents to the public and NCAs consultations confirmed that the 
Notice  provides  correct,  comprehensive  and  clear  guidance  as  regards  chains  of 
substitution.  However,  some  respondents  from  the  business  community  and  NCAs 
expressed  the  view  that  more  guidance  was  necessary,  and  that  some  caution  may  be 

197  For instance, AT.39692 – IBM Maintenance Services, AT.39097 – Watch Repair, AT.40099 – Google 
Android,  M.7278  –  General  Electric/Alstom,  M.7292  –  DEMB/Mondelez/Charger  Opco,  M.7801  – 
Wabtec/Faiveley and M.8658 – UTC/Rockwell Collins. 
198  See Office of Fair Trading (OFT) (2004), Market definition. 
199  For  instance,  Borenstein,  S.,  MacKie-Mason,  J.,  and  Netz,  J.,  ‘Antitrust  Policy  in  Aftermarkets’, 
Antitrust  Law  Journal,  volume  63,  1995;  Schulz,  L.,  ‘The  Economics  of  Aftermarkets’,  Journal  of 
European  Law  &  Practice,  volume  6(2),  2015,  and  Shapiro,  C.,  and Teece  D.,  ‘Systems  competition 
and aftermarkets: an economic analysis of Kodak’, Antitrust Bulletin, volume 39(1), 1994. 

200  See Summary of the public consultation and Summary of the NCA consultation. 
201  See Section 3.2 of the support study. 
202  See, for instance, M.7421 – Orange/Jazztel and M.7555 – Staples/Office Depot. 
203  Paragraph 57 of the Notice. 

53 

 
                                                 
needed regarding the application of this concept. Furthermore, three NCAs noted that it 
may not be necessary to refer to the concept of chain of substitution anymore204.  

In specific  cases, the  Commission  has  applied  the concept  of chain  of substitution  (see 
footnotes  205  and  206).  However,  the  evaluation  results  indicate  that  this  must  be 
carefully  considered  given  the  risk  of  widening  the  markets  excessively  because  a 
continuity of products or geographic areas does not indicate per se that there is only one 
relevant  market,  namely when there  are breaks in the chain  of substitution. The Notice 
indicates that, when applying this concept, consideration should be given to the possible 
interdependence  of  the  prices  of  products/geographic  areas  at  the  extremes  of  the 
chain205. Moreover, other  factors not  explicitly mentioned in  the Notice have also  been 
considered  in  certain  circumstances,  for  instance  the  possibility  of  price  discrimination 
and the size of the overlap between the different areas/products206. 

Digital markets  

There are no explicit references in the Notice to the phenomena found in digital markets; 
however, they  appear regularly in  Commission  practice,  as also  indicated by almost  all 
respondents  to  the  public  and  NCA  consultations.  These  include  multi-sided  platforms, 
zero-monetary price services, treatment of data in market definition and e-commerce207. 

According  to  Commission  practice,  in  a  multi-sided  context,  relevant  markets  can  be 
defined: (i) for the platform as a whole, in a way that encompasses all customer groups 
(‘single market approach’)208; or (ii) for each side, i.e. separate relevant markets defined 
for  different  sides  of  the  platform  (‘multi-markets  approach’) 209 .  The  support  study 
concludes that the academic literature210 and the NCA practice do not appear to endorse 
the  distinction  between  defining  a  single  market  for  transaction  platforms  and  defining 
separate  markets  on  each  side  for  non-transaction  platforms.  Instead,  according  to  the 
support  study,  whether  a  market  should  be  defined  as  encompassing  all  sides  of  the 
platform or not depends  on the following: platform typology (and, within the typology, 
the platform’s business model, i.e. how the two sides interact), and other factors such as 

204  See Summary of the public consultation and Summary of the NCA consultation. 
205  See, for instance, M.5335 – Lufthansa/SN Airholding and M.9413 – Lactalis/Nova Castellis. 
206  See, 

instance,  AT.40220  –  Qualcomm 

(exclusivity  payments) 

for 

and  M.4919 

– 

Statoilhydro/Conocophilips. 

207  See Summary of the public consultation and Summary of the NCA consultation. 
208  For  instance,  in  M.4523  –  Travelport/Worldspan,  the  Commission  defined  a  single  market  for  global 
distribution system services encompassing both the travel services providers’ side and the travel agents’ 
side.  In  M.8124  –  Microsoft/LinkedIn,  the  Commission  defined  a  single  market  for  online  recruiting 
services, encompassing both job seekers and recruiters. 

209  For instance, in cases involving advertising-funded search engines or social networks, the Commission 
defined  online  advertising  services  as  a  relevant  market,  separate  from  the  markets  for  services 
provided to other categories of users (and vice versa). This was the case in M.5727 – Microsoft/Yahoo 
Search  Business,  M.6281  –  Microsoft/Skype,  M.7217  –  Facebook/WhatsApp,  M.8124  – 
Microsoft/LinkedIn,  as  well  as  in  AT.39740  –  Google  Search  (Shopping)  and  AT.40099  –  Google 
Android.  

210  See also the presentation to the Commission by Professors J-U Franck and M. Peitz on 25 March 2021. 

54 

 
                                                 
substitution  possibilities  across  the  various  user-groups  (i.e.  which  other  products  or 
services the user sides regard as interchangeable)211. 

The evaluation results show that the Notice does not make explicit reference to all of the 
elements  that  may  be  taken  into  account  by  the  Commission 212  and  NCAs 213  when 
defining relevant markets in the case of multi-sided platforms. The elements in question 
include:  network  effects  and  interdependency  of  demand  on  both  sides  (i.e.  indirect 
network  effects),  pricing  structure 214 and  pricing  strategies,  as  well  as  multi-  versus 
single-homing215. The evaluation results also highlight the increasing importance of data 
and  their  effects  on  market  definition,  which  is  currently  not  explicitly  reflected  in  the 
Notice216. 

Commission  practice  further  shows  that,  although  not  mentioned  in  the  Notice,  zero 
monetary  prices  are  not  an  impediment  to,  but  an  integral  part  of,  a  platform’s  profit 
maximising strategy. According to the evaluation results, the fact that a product is offered 
at a zero monetary price does not imply that there is no market for that product, as long 
as  zero  monetary  prices  form  part  of  ‘an  overarching  commercial  strategy’  of  the 
platform217.  The  position  that  a  market  may  exist  when  a  product  is  offered  without 
monetary remuneration by users was taken by the Commission in several cases involving 
multi-sided platforms218. This  position  was (implicitly)  confirmed by  the Court of  First 
Instance in  Microsoft where it found that streaming media players constitute a separate 
relevant  market,  even  though  they  were  typically  provided  to  consumers  free  of 
charge219. The support study confirmed that authorities are prepared to acknowledge the 
existence of relevant markets also in the context of zero monetary prices220. 

211  See Section 3.1.1 of the support study. See also the summary of ECN meetings in Annex 2.2.4. 
212  See,  for  instance,  M.4523  –  Travelport/Worldspan,  AT.39740  –  Google  Search  (Shopping)  and 
AT.40099  –  Google  Android.  The  CJEU  also  indicated  in  judgment  of  11  September  2014, 
Groupement  des  Cartes  Bancaires  (CB)  v  Commission,  C-67/13  P,  EU:C:2014:2204,  that  defining  a 
separate  relevant  market for one side of a two-sided system  should not prevent the interdependencies 
between  the  two  sides  of  the  market  from  being  taken  into  account  in  assessing  the  existence  of  a 
restriction of competition under Article 101(1) TFEU. 

213  See Section 3.1 of the support study. 
214  i.e. the ratio of the prices of the different sides. 
215  Customers are said to single-home when they use a single platform for a specific purpose and to multi-

home when they use multiple platforms for the same purpose in parallel.  

216  See Section 3.3 of the support study. See also M.4726  – Thomson Corporation/Reuters Group, where 
the Commission considered several data-related markets as regards financial information and M.4854 – 
TomTom/Tele Atlas, where the Commission defined a market for the provision of digital map databases. 
In  cases 
like  M.4731  –  Google/DoubleClick,  M.7217  –  Facebook/WhatsApp,  M.8124  – 
Microsoft/LinkedIn  and AT.39740  – Google Search (Shopping), the Commission analysed the role of 
data in competition between digital players. 

217  See Crémer, J., de Montjoye, Y., and Schweitzer H., Competition Policy for the Digital Era, Report for 
the  European  Commission,  2019.  See  also  the  presentation  to  the  Commission  by  Professors  J-U 
Franck and M. Peitz on 25 March 2021. 

218  See, for instance, AT.37792 – Microsoft, AT.39740 – Google Search (Shopping), AT.40099 – Google 
Android, M.6281 – Microsoft/Skype, M.7217 – Facebook/WhatsApp and M.8124 – Microsoft/LinkedIn.  
219  Judgment  of  17  September  2007,  Microsoft  Corp.  v  Commission,  T-201/04,  EU:T:2007:289, 

paragraphs 927–933 and 966–970. 
220  See Section 3.1.4 of the support study. 

55 

 
                                                 
Finally,  in  relation  to  digital  markets,  although  there  is  no  explicit  reference  to 
e-commerce  in  the  current  Notice,  according  to  the  evaluation  results,  including  the 
support  study,  the  Commission  and  other  NCAs  have  looked  at  how  to  define  the 
relevant product market in e-commerce cases on several occasions in both antitrust and 
merger decisions, in particular as regards the substitutability between online and offline 
channels221.  

Non-price elements, including innovation  

The evaluation results indicate that the Notice correctly reflects Commission practice on 
non-price elements as relevant for market definition, both in its product and geographic 
dimension,  and  that  they  can  be  essential  when  it  comes  to  assessing  product 
substitutability222.  However,  the  results  also  suggest  that  the  Notice  does  not  explicitly 
provide  specific  guidance  as  regards  market  definition  in  markets  with  a  heavy 
innovation component.  

Respondents  to  the  public  consultation  (including  respondents  from  all  groups  of 
stakeholders) consider that the Notice lacks adequate guidance on innovation. According 
to  those  respondents,  this  relates  in  particular  to  the  definition  of  markets  around  key 
inputs  such  as  innovation  capabilities  and  to  the  question  of  whether  competition  from 
innovators outside a given product market could exert a significant constraint. The NCAs 
consulted  also  indicated  that  innovation  presents  a  series  of  challenges  in  defining 
markets in innovation-intensive sectors223. 

The  approach  to  the  complexities  associated  with  innovation  has  been  progressively 
incorporated  into  the  EU  competition  law  acquis,  including  in  several  merger  and 
antitrust  guidelines,  such  as  the  Horizontal  Merger  Guidelines,  the  Horizontal 
Cooperation Guidelines224 and the  Technology  Transfer  Guidelines225. For instance, the 
Horizontal Cooperation Guidelines distinguish between three different levels of assessing 
R&D  agreements:  ‘existing  product  markets’,  ‘existing  technology  markets’  and 
‘competition in innovation (R&D efforts)’226. 

The  evaluation  results,  and  in  particular  the  support  study 227 ,  further  indicate  that 
competition authorities have mostly followed three main approaches, roughly identified 
depending  on  the  nature  of  innovation  that  characterises  the  industry  in  question:  (i) 
where  innovation  aspects  are  assessed  as  part  of  existing  product  markets;  (ii)  where 

221  See Section 3.4 of the support study. As regards Commission cases, see, for instance, Case AT.40420 – 
ZeniMax,  AT.40153  –  Amazon  MFN,  M.4611  –  Egmont/Bonnier,  M.7726  –  Coty/Procter  &  Gamble 
beauty business, and M.8394 – Essilor/Luxottica. 

222  See paragraphs 2, 7, 25, 29, 36, 44 and 46 of the Notice. 
223  See Summary of the public consultation and Summary of the NCA consultation. 
224  Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union 
to horizontal co-operation agreements, OJ C11, 14.1.2011 (‘Horizontal Cooperation Guidelines’). 
225  Communication from the Commission — Guidelines on the application of Article 101 of the Treaty on 
the  Functioning  of  the  European  Union  to  technology  transfer  agreements,  OJ  C  89,  28.3.2014 
(‘Technology Transfer Guidelines’). 

226  Horizontal Cooperation Guidelines, at Section 3.2. 
227  See Section 4 of the support study. 

56 

 
                                                 
innovation aspects are assessed as part of separate technology markets for licensed/traded 
technologies;  and  (iii)  where  innovation  aspects  are  assessed  as  part  of  separate 
innovation spaces or R&D hubs for non-traded innovation results228. 

5.3. Efficiency  

Evaluation questions: Has the Notice led to increased benefits and reduced costs? Is 
there scope for further simplification and cost reduction? 

The  evidence  gathered  in  the  evaluation  suggests  that  there  appear  to  be  no  costs 
associated  with  the  Notice  as  compared  to  a  scenario  where  no  guidance  would  be 
provided. On the contrary, the Notice generates  benefits not only for the Commission’s 
work but  also  for the stakeholders using it. This  is  because by  clarifying  the principles 
the  Commission  takes  into  account  when  defining  markets  and  the  most  important 
elements  it  uses  in  that  process,  the  Notice  helps  companies  to  reduce  costs.  These 
include:  (i) costs associated with  external  legal  assistance, and (ii) costs of competition 
law infringements stemming from an incorrect assessment of their market position (legal 
fees and fines as well as negative effects of losing investments or changing commercial 
strategy).  There  is  evidence  to  suggest  that  those  savings  may  be  significant  although 
they  could  not  be  quantified  precisely  in  the  evaluation.  Furthermore,  the  Notice 
generates  additional  sizeable  benefits  by  helping  to  meet  the  need  to  facilitate 
competition  enforcement  and  compliance  in  the  internal  market,  to  the  benefit  of 
consumers. 

Nevertheless,  the  evaluation  results  indicate  that  the  Notice’s  benefits  for  both 
stakeholders  and  the  Commission  could  increase  if  further  guidance,  and  thus 
transparency, was provided on certain specific points. 

The evaluation assessed whether the Notice has been efficient in achieving its objectives, 
taking into account the costs and benefits associated with using it. In accordance with the 
current  EU  competition  law  framework,  businesses  self-assess  their  position  in  the 
relevant  market  prior  to  engaging  in  certain  business  practices  or  prior  to  deciding 
whether  to  agree  and  notify  a  certain  merger.  This  self-assessment  necessarily  entails 
costs  for  businesses.  However,  the  Notice  aims  to  facilitate  this  self-assessment  by 
providing  guidance  on  the  principles  and  evidence  used  by  the  Commission  in  market 
definition.  The  Notice  does  not  impose  any  additional  obligations  on  businesses 
compared  to  a  situation  without  any  guidance  in  place.  This  is  because  the  Notice 
codifies  best  practices  derived  from  the  past  practice  of  the  Commission  and  other 
leading  competition  authorities,  as  well  as  from  guidance  provided  by  the  EU  Courts, 
building on established economic principles. 

228  For  instance,  in  M.7275  –  Novartis/GlaxoSmithKline  Oncology,  the  Commission  concluded  that  the 
transaction  would  lead  to  a  reduction  of  potential  competition  for  innovative  cancer  treatments 
regarding  overlaps  between  a  marketed  product  and  a  pipeline  Phase  III  product,  as  well  as  to  a 
reduction  of  innovation  competition  regarding  overlaps  between  pipeline  products  at  earlier  stages  of 
development, namely in Phase I and Phase II. In M.7932 – Dow/Dupont, the Commission also assessed 
the parties’ pipeline projects both in relation to potential competition and innovation competition. See 
also M.6278 – Takeda/Nycomed and M.8084 – Bayer/Monsanto. 

57 

 
                                                 
In  assessing  whether  the  Notice  has  been  efficient  in  achieving  its  objectives,  the 
following elements  were analysed:  (i) the  costs and benefits  associated with the Notice 
compared  to  what  would  have  happened  if  it  did  not  exist;  and  (ii)  the  potential  for 
improving the Notice to further increase the associated benefits.  

First, the evaluation results show that the Notice has been an efficient instrument because 
its benefits have exceeded its costs.  

In the first place, the results indicate that there are  no  costs  associated  with  using  the 
Notice  as  compared  to  a  scenario  where  no  guidance  was  provided.  As  shown  in 
Sections  5.1  and  5.2  above,  the  evaluation  results  suggest  that  the  Notice  remains 
relevant  and  that  it  has  overall  been  effective  in  providing  correct,  comprehensive  and 
clear guidance. The results indicate that, even if the Notice is not as comprehensive today 
as it was in 1997 and even if it could be made clearer in some respects (see Section 5.2 
on  effectiveness),  the  baseline  scenario  of  having  no  Notice  would  not  improve  this 
situation.  On  the  contrary,  in  the  absence  of  a  notice  providing  guidance,  stakeholders 
would have to  anticipate what  type of  analysis the Commission  was going to  carry  out 
and what evidence it would rely on based on various sources, including previous practice, 
court guidance and economic principles, which would require extra resources from those 
stakeholders.  This  finding  is  confirmed  by  the  fact  that  the  NCAs  and  stakeholders 
replying  to  the  public  consultation  consider  the  Notice’s  costs  to  be  limited  or  even 
zero229.  

In  the  second  place,  and  in  any  event,  respondents  to  the  public  consultation 
considered  that  there  are  significant  benefits  associated  with  the  Notice.  Although 
they were not able to quantify the benefits, respondents stated that the Notice improves 
legal certainty, thereby helping companies to reduce costs. Such costs include: (i) costs 
associated with external legal assistance (due to the Notice at least part of the assessment 
can be carried out  in-house);  and (ii)  costs of  competition  law infringements  stemming 
from an incorrect assessment of their market position (including legal fees and fines, and 
the negative effects of making  investments or adopting a commercial strategy that later 
need to be changed)230. 

One  business  respondent  indicated  that  ‘Without  the  Notice,  companies  would  face 
greater  uncertainty  when  taking  commercial  decisions  and  expend  additional  time  and 
resources  self-assessing  their  behaviour,  while  facing  the  risk  of  longer  investigations 
and  inconsistent  decisions  by  the  Commission’s  case  teams’ 231 .  Another  business 
respondent explained that ‘A clear guidance on how to define markets helps to identify a 
business  perimeter  and  the  forces  to  take  into  account  within.  It  allows  companies  to 
make  strategic  business  decisions,  such  as  acquisitions  and  developing  a  new  activity, 
with more legal certainty more rapidly and more efficiently. Quantifying the magnitude 
of  the  net  benefits  would  need  to  be  assessed  on  a  case-by-case  basis  as  all  strategic 

229  See Summary of the public consultation and Summary of NCAs consultation. 
230  See Summary of the public consultation. 
231  Reply of a business organisation to question IV.1.1 of the public consultation questionnaire. 

58 

 
                                                 
decisions do not rely in the same way on the legal analysis’232. One business respondent 
added  that  ‘Competition  law  compliance  would  be  significantly  more  costly  and 
inefficient (higher costs, less legal certainty, longer delays, etc.) if the Commission gave 
no guidance on its approach to market definition’233. 

As explained in Section 2.5, in both merger and antitrust matters, having no notice would 
make it harder for companies to determine how the Commission would likely define the 
relevant  market(s)  and  what  elements  it  would  take  into  account.  This  would  involve 
dedicating  additional  internal  resources  to  researching  a  large  number  of  Commission 
decisions  and  EU  Court  judgments  and  possibly  also  literature  on  market  definition. 
Companies would also likely spend more resources on consultancy from law firms and 
economic consultants  to  help  them  find the most relevant  decisions and interpret  them, 
resulting in additional costs but also in substantial delays.  

There  is,  however,  scarce  evidence  of  the  amount  of  administrative  costs  incurred  by 
businesses  in  the  context  of  competition  enforcement  to  which  these  savings  would 
apply. Morever, the costs related to defining the relevant markets are only one part of the 
total  costs  incurred  by  businesses  in  this  context,  which  are  impossible  to  disentangle 
from  the  total.  Nevertheless,  the  total  costs  incurred  by  undertakings  involved  in  a 
competition law investigation are significant. A PriceWaterhouseCoopers (2003) study234 
that  examined  data  for  59  transactions  identified  average  external  merger  review  costs 
(including legal fees, other advisory fees and  translation and other miscellaneous costs) 
per  transaction  of  EUR  3.3  million  and  average  external  costs  per  jurisdiction  of  EUR 
540 000235. Updating these costs to  current  prices  gives figures of EUR 4.3 million and 
EUR  700 000  respectively.  The  savings  per  undertaking  associated  with  an  increase  in 
the level of transparency as a result of the Notice should therefore be significant. 

In the third place,  NCAs  also  considered  that  the  Notice  generates  several  benefits. 
Among the benefits, NCAs noted that the Notice provides guidance and transparency to 
companies  and  their  advisers,  which  increases  legal  certainty  and  avoids  the  need  to 
explain  the  basic  principles  of  market  definition  in  every  case,  thereby  allowing  the 
analysis  to  focus  on  the  more  important  aspects  of  market  definition.  The  Notice  also 
provides  a  reference  tool  for  NCAs  that  do  not  have  their  own  market  definition 
guidelines,  as  well  as  to  courts  reviewing  competition  cases.  The  NCAs  further 
mentioned  that  the  Notice  plays  an  important  role  in  ensuring  consistency  across  the 
ECN – including with NCAs that have issued their own guidance on market definition236. 

232  Reply of a business organisation to question IV.1.1 of the public consultation questionnaire. 
233  Reply of business to question IV.1.1 of the public consultation questionnaire.  
234  PricewaterhouseCoopers,  ‘A  tax  on  mergers?  Surveying  the  costs  to  business  of  multijurisdictional 
merger review’, 2003, commissioned by International Bar Association and American Bar Association, 
http://www.pwcglobal.com/uk/eng/about/svcs/vs/pwc_mergers.pdf.  

235  For  the  28  transactions  subject  only  to  initial  review,  the  external  costs  per  transaction  averaged 
EUR 545 000.  The  average  external  cost  attributable  to  in-depth  reviews  were,  as  expected,  much 
higher, at EUR 5.438 million per transaction. 

236  See Summary of the NCA consultation. 

59 

 
                                                 
In the fourth place, and as explained in Section 5.1, given that the Notice helps facilitate 
competition  enforcement  and  compliance  in  the  internal  market  to  the  benefit  of 
consumers, a share of those sizeable benefits would be attributable to the Notice. 

Second,  in  relation  to  the  possible  scope  for  further  benefits,  the  results  of  the 
evaluation showed that there is scope to improve the level of transparency provided by 
the  Notice  in  certain  specific  points.  The  Commission  services  consider  that  such 
improvements  could  increase  the  ease  with  which  the  Notice  can  be  applied  to  a  wide 
range  of  cases  and  could  make  it  better  suited  to  assess  current  market  dynamics  (see 
Section 5.2 on effectiveness).  

The results of the evaluation indicate that the Notice should continue to be based on the 
right  balance  between:  (i)  setting  out  established  broad  principles  that  are  sufficiently 
general  and  apply  to  different  market  contexts;  and  (ii)  providing  further  guidance  on 
specific  issues.  In  fact,  the  respondents  to  the  public  consultation  and  NCAs  overall 
agreed  that  although  the  principles  expressed  in  the  Notice  do  not  need  to  be  changed, 
there are trends and developments that have affected its application. This is the case, for 
example, for digitisation (and its different aspects, including multi-sided platforms, data, 
‘ecosystems’) and innovation-driven markets, as well as the quantitative tools applied237. 
Furthermore, in terms of technical improvements, respondents to the public consultation 
and  NCAs  suggested  using  more  references  to  Commission  decisions,  EU  Court 
judgments and hypothetical examples in the Notice to enhance its user-friendliness.  

This indicates that the Notice’s benefits could be higher and the costs of self-assessment 
and cooperation lower if the Notice were to be updated on points where it  might not be 
entirely comprehensive or clear. Any such potential update should, of course, be done in 
a way that guarantees that the Notice remains future-proof as much as possible, by setting 
out and illustrating broad principles that are applicable across cases rather than providing 
just a repertory of case-law and practice.  

5.4. Coherence  

Evaluation  questions:  How  well  have  the  different  components  of  the  Notice 
operated  together?  Is  the  Notice  in  line  with  the  judgments  of  the  EU  Courts  and 
changes  in  the  legal  competition  framework,  and  with  other  instruments  of  EU 
competition policy and other EU policies? 

The  evidence  gathered  in  the  evaluation  suggests  that  the  different  components  of  the 
Notice operate well together and that they are  generally in  line with  other antitrust  and 
merger  guidance,  with  the  main  principles  set  out  in  the  case  law  and  with  other  EU 
policies.  

Nevertheless, the results of the evaluation indicate that the Notice does not reflect certain 
clarifications  stemming  from  the  judgments  of  the  EU  Courts,  and  that  it  has  not  been 

237  See Summary of the public consultation. 

60 

 
                                                 
updated  by  reference  to  the  merger  control  standard  of  ‘significant  impediment  to 
effective  competition’  introduced  by  the  2004  EU  Merger  Regulation.  The  evaluation 
also highlighted the need to ensure consistency between a potential review of the Notice 
and the parallel reviews of some of the antitrust guidance documents. 

The evaluation assessed whether the Notice sets out a coherent approach, both internally 
–  looking  at  how  the  various  components  of  the  Notice  operate  together  to  achieve  its 
objectives  –  and  externally  –  looking  at  the  Notice  in  the  wider  context  in  which  it 
operates. When looking at the external coherence of the Notice, and linked to the fact that 
the Notice is applied across EU competition law instruments, the Notice’s coherence was 
assessed  along  four  main  areas:  consistency  with  other  antitrust  laws  and  guidance, 
consistency  with  other  merger  laws  and  guidance,  consistency  with  EU  case-law  and, 
finally, consistency with EU policies other than competition law.  

The  evidence  gathered  in  the  evaluation  suggests  that  the  different  components  of  the 
Notice operate well together and that they are  generally in  line with  other antitrust  and 
merger  guidance,  with  the  main  principles  set  out  in  the  case-law  and  with  other  EU 
policies.  

First,  ahead  of  analysing  specific  aspects  of  the  Notice’s  coherence,  the  Commission 
services  note  that  NCAs  and  the  respondents  to  the  public  consultations  showed 
strong agreement on the Notice’s internal and external coherence. Almost all NCAs 
considered  that  the  Notice  is  internally  and  externally  coherent238.  Respondents  in  the 
public consultation also expressed very positive views, although not all respondents were 
in  a  position  to  reply  to  all  questions,  potentially  due  to  the  technical  nature  of  the 
questions  asked239.  In  providing  their  positive  comments,  a  number  of  both  public  and 
NCA  respondents  flagged  that  the  high  coherence  of  the  Notice  and  its  ability  to  stay 
internally  and  externally  coherent  23  years  after  its  initial  adoption  was  due  to  a  large 
degree to its focus on broad principles. 

the  Notice  work  well 

Second, concerning the Notice’s internal coherence, the evaluation results suggest that 
the  different  components  of 
together  without  apparent 
contradictions.  Nonetheless,  as  already  highlighted  in  Section  5.2  on  effectiveness,  the 
evaluation  results  indicate  that  some  relationships  within  the  Notice  are  not  clearly 
explained.  For  example,  the  evaluation  results  suggest  that  the  relationship  and 
differences  between  demand-side  substitutability,  supply-side  substitutability  and 
potential competition lack clarity in part. In this respect, it transpires from both the public 
and the NCA consultations that whereas those three elements are seemingly presented as 
equally  ranked  ‘three  main  sources  of  constraints’  in  paragraph  13  of  the  Notice,  other 
parts  of  the  Notice  and  the  Commission’s  practice  seem  to  give  higher  importance  to 
demand-side  elements.  The  role  of  the  SSNIP  in  the  Notice  was  also  flagged  by  some 
respondents  as  not  being  fully  coherent  at  times  and  some  respondents  considered  that 
excessive importance is given in the Notice to the quantitative test underlying the SSNIP 

238  See Summary of the NCA consultation. 
239  See Summary of the public consultation. 

61 

 
                                                 
methodology,  especially  when  compared  with  the  Commission’s  decisional  practice. 
Individual  respondents  in  both  consultations  (NCA  and  public  consultation)  also  called 
for  more  clarity  about  the  differences  and  the  role  of  market  definition  in  antitrust  and 
merger  assessments  in  the  different  parts  of  the  Notice,  and  about  the  need  to  clarify 
whether a market definition analysis is always needed. This latter argument came up in 
an  especially  prominent  manner  in  the  consultations  with  respect  to  ‘by  object’  cases 
under Article 101 TFEU240. Individual respondents to both consultations also pointed out 
that  in  their  view,  the  delineation  between  the  ‘evidence’,  ‘process’  and  ‘additional 
considerations’ sections of the Notice should be rethought. 

Third,  the  evaluation  also  shows  similar  support  among  stakeholders  of  all  respondent 
groups as regards the Notice’s consistency with other instruments providing guidance 
on  EU  antitrust  rules  (the  Horizontal  and  Vertical  Block  Exemption  Regulations  and 
other  instruments  based  on  Articles  101  and  102  TFEU).  As  with  the  previously 
described aspects of coherence, there was near-consensus among NCAs on this issue and 
a large majority of respondents to the public consultation expressing a view agreed. One 
issue mentioned several  times, however, concerned the  consistency between the Notice 
and  the  Vertical  Block  Exemption  Regulation  and  its  accompanying  Guidelines 241 
(currently also under review242), and more specifically the way in which both documents 
treated terms such as ‘buyer’, ‘customer’ or ‘consumer’. Furthermore, the staff working 
document of the Vertical Block Exemption Regulation presents issues related to:  

-  market definition, including the diverging interpretations of the relevant markets 

in vertical relationships, (page 61);  

-  perceived  inconsistencies  between  the  various  block  exemptions  as  regards  the 
definition  of  potential  competitors  (page  73)  and  the  concept  of  potential 
competitor set out in paragraph 27 of the Vertical Guidelines (page 78); and 
the  roundtable  discussions  on  whether  the  EU  stipulations  on  market  definition 
should  be  made  binding  on  NCAs  to  avoid  markets  being  defined  too  narrowly 
and the possibility of divergent  market  definitions by  different  authorities (page 
137).  

- 

Concerning the review of the horizontal rules243, respondents generally mentioned that all 
references  to  market  definition  in  the  Horizontal  Cooperation  Guidelines  could  be 
included  in  the  Notice  rather  than  in  two  different  documents.  However,  some 
respondents,  including  some  from  the  business  community,  considered  that  specific 
guidance outside the Notice could also be useful, for example on digital phenomena.  

240 By-object cases are those where it is unnecessary to look at the effects of the conduct on the market. 
241  Commission Regulation 330/2010 of 20 April 2010 on the  application of Article 101(3) of the Treaty 
on the Functioning of the European Union to categories of vertical agreements and concerted practices.  
OJ  L  102,  23.4.2010,  pp.  1–7  and  Commission  notice  –  Guidelines  on  Vertical  Restraints, 
SEC/2010/0411 final (‘Vertical Block Exemption Regulation and its accompanying Guidelines’). 

242  Commission  staff  working  document,  Evaluation  of  the  Vertical  Block  Exemption  Regulation, 

243  Commission  staff  working  document,  Evaluation  of  the  Horizontal  Block  Exemption  Regulations, 

SWD(2020)173final, 8 September 2020. 

SWD(2021)103 final, 6 May 2021. 

62 

 
                                                 
Fourth, the evaluation showed also that the Notice is generally  consistent with  the EU 
Merger  Regulation  and  with  other  instruments  providing  guidance  on  EU  merger 
control  rules  (in  particular  the  Horizontal  Merger  Guidelines  and  the  Non-Horizontal 
Merger Guidelines244). While support within the public consultation remained at similar 
levels as for the previous point on consistency with antitrust rules, the number of NCAs 
showing their disagreement about the Notice’s consistency with merger control rules was 
slightly larger. The evaluation showed that respondents to both consultations seemed to 
agree  that  the  Notice  does  not  reflect  the  substantive  test  of  ‘significant  impediment  to 
effective competition’ codified by the 2004 EU Merger Regulation and the references to 
the dominance test in paragraph 10 of the Notice are thus out dated. Some respondents 
from the business community also argued that the concept of potential competition in the 
Notice is not fully aligned with that expressed in the Horizontal Merger Guidelines.  

Fifth, the evaluation showed that the Notice is generally consistent with the case-law of 
the General Court and the CJEU and with Commission practice. While no apparent 
contradictions  were  flagged,  the  evaluation  indicated  that  the  Notice  does  not  entirely 
reflect court rulings over the past 23 years, or market developments and the subsequent 
evolutions  in  the  Commission’s  decisional  practice.  These  include,  according  to  the 
evaluation results, the role of market definition as a means but not an end in itself245 and 
the fact that market shares provide only a first indication of market power246. The public 
consultations feeding into the evaluation also brought forward topics where recent case-
law of the EU Courts is not reflected in the Notice. Examples mentioned247 included the 
more limited importance of market shares in fast-moving markets248, the Commission’s 
discretion in the assessment of evidence of economic nature249 and the factors playing a 
role in the assessment of substitutability250.  

Sixth, the evaluation also showed that the Notice is consistent with other Commission 
policies,  with  the  telecommunications  framework  (including  the  concept  of  ‘significant 
market  power’)251 being  flagged  as  one  key  area  where  consistency  should  be  ensured. 

244  Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings, OJ C 265 of 18/10/2008 (‘Non-Horizontal Merger Guidelines’). 
245  See, for example, judgment of 6 July 2000,  Volkswagen AG v Commission, T-62/98, EU:T:2000:180, 
judgment of 22 March 2000, the Coca-Cola Company and Coca-Cola Enterprises Inc. v Commission, 
T-125/97,  EU:T:2000:84,  and  judgment  of  23  May  2019,  KPN  BV  v  Commission,  T-370/17, 
EU:T:2019:354 (‘T-370/17, KPN BV v Commission’). 

246  Judgment  of  28  May  2020,  CK  Telecoms  UK  Investments  Ltd  v  Commission,  T-399/16, 

EU:T:2020:217. 

247  A more detailed list of the case-law mentioned in the public consultation can be found in the Summary 

of the open public consultation. 

248  Judgment  of  11  December  2013,  Cisco  Systems,  Inc.  and  Messagenet  SpA  v  Commission,  T-79/12, 

EU:T:2013:635. 

249  See, for example, T-370/17, KPN BV v Commission, paragraphs 58–9, and the cases cited therein. 
250  C-307/18, Generics (UK) and Others v CMA. 
251  See,  for  example,  Directive  (EU)  2018/1972  of  the  European  Parliament  and  of  the  Council  of  11 
December  2018  establishing  the  European  Electronic  Communications  Code  (Recast),  OJ  L  321, 
17.12.2018, p. 36–214. According its Article 63(2), ‘an undertaking shall be deemed to have significant 
market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, 
namely  a  position  of  economic  strength  affording  it  the  power  to  behave  to  an  appreciable  extent 
independently of competitors, customers and ultimately consumers.’ 

63 

 
                                                 
The  evaluation  also  showed  that  the  Notice  is  relevant  for  the  Common  Market 
Organisation Regulation applicable in the agricultural sector252 to the extent that the latter 
quotes the Notice, thus ensuring consistency between the two, and that the Geo-Blocking 
and  P2B  Regulations 253 also  have  a  certain  connection  with  the  Notice,  although  no 
inconsistency was identified. The evaluation further showed that consistency should also 
be  ensured  in  particular  with  the  reviews  of  the  Block  Exemptions  Regulations  for 
horizontal and vertical  agreements (ongoing), as well as with the proposal for  a Digital 
Markets  Act 254  (currently  following  the  ordinary  legislative  procedure),  even  if,  as 
explained above, the definition of relevant market is not foreseen in the current proposal 
for  a  Digital  Markets  Act,  which  is  an  ex  ante  regulatory  act  based  on  internal  market 
principles. Finally, the results of the evaluation indicate that the Notice is also consistent 
with  broader  EU  policies:  as  an  essential  element  of  EU  competition  policy,  market 
definition (and the Notice) is inherently linked to a well-functioning single market and to 
all  benefits  and  policies  linked  to  it.  Furthermore,  the  Commission’s  examination  of 
competition policy’s contribution to the EU Green Deal has highlighted the importance 
of  taking  into  account  consumer  preferences  for  environmentally  friendly  products, 
services and/or technologies in market definition where relevant, in particular as a factor 
of  product  differentiation.  Similarly,  the  evaluation  has  highlighted  the  importance  of 
making  sure  that  the  Notice  is  fit  for  purpose  in  an  increasingly  digital  economy  to 
support  competition  enforcement  in  increasingly  digital  markets  –  in  line  with  the 
Commission’s Digital Agenda. 

5.5. EU added value  

Evaluation  question:  To  what  extent  has  the  Notice  at  EU  level  provided  clear 
added  value,  for  instance  by  contributing  to  a  consistent  approach  to  market 
definition by the Commission and the EU national competition authorities?  

The  evaluation  results  suggest  that  the  Notice  has  added  value  by  helping  to  ensure  a 
consistent approach to EU competition rules among the NCAs and the Commission and 

252  Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 
establishing  a  common  organisation  of  the  markets  in  agricultural  products  and  repealing  Council 
Regulations  (EEC)  No  922/72,  (EEC)  No  234/79,  (EC)  No  1037/2001  and  (EC)  No 1234/2007,OJ  L 
347,  20.12.2013,  p.  671–854.  See,  for  example,  Articles  207  and  208  relating  to  the  concepts  of 
‘relevant market’ and ‘dominant position’ respectively. 

253  Regulation  (EU)  2018/302  of  the  European  Parliament  and  of  the  Council  of  28  February  2018  on 
addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, 
place of residence or place of establishment within the internal market and amending Regulations (EC) 
No  2006/2004  and  (EU)  2017/2394  and  Directive  2009/22/EC,  OJ  L  60I,  2.3.2018,  p.  1–15,  and 
Regulation  (EU)  2019/1150  of  the  European  Parliament  and  of  the  Council  of  20  June  2019  on 
promoting  fairness  and  transparency  for  business  users  of  online  intermediation  services,  OJ  L  186, 
11.7.2019, p. 57–79. Both Regulations seek to realise the full potential of the digital single market and 
contribute  respectively  to  the  prevention  of  unjustified  geo-blocking  and  to  increasing  transparency, 
fairness  and  effective  redress  possibilities  for  business  users  in  their  use  of  online  intermediation 
services. 

254  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  contestable  and  fair 

markets in the digital sector, COM/2020/842 final (‘Digital Markets Act’). 

64 

 
                                                 
by offering a common point of reference for NCAs also in the interpretation of national 
competition laws. 

The evaluation results also show that the added value would be higher if the Notice were 
easier  to  use.  Suggestions  to  improve  it  include  adding  examples  or  references  to  the 
case-law  underlying  its  statements  or  providing  further  guidance  on  market  definition 
issues in national and regional markets which are often relevant for NCAs. 

Article 3 of the TFEU includes ‘establishing of  the competition  rules necessary  for the 
functioning of the internal  market’ as an  exclusive EU competence, acknowledging the 
value of a common EU competition policy for the internal market and for the benefit of 
EU  citizens.  That  notwithstanding,  and  as  explained  in  Section  5.1,  the  NCAs  and 
national courts apply Articles 101 and 102 TFEU alongside the Commission. Moreover, 
while NCAs cannot apply the EU Merger Regulation, they have their own merger control 
systems, many of which are similar to that applicable under the EU Merger Regulation.  

The evaluation exercise aimed at assessing whether the Notice (i) has added value at the 
EU  level  in  the  assessment  of  relevant  product  and  geographic  markets  when  applying 
EU  competition  law  (including  application  by  NCAs)  and  (ii)  has  helped  align  the 
definition of the relevant markets by NCAs and the Commission. 

In  relation  to  the  first  question,  the  evaluation  indicated  that  the  Notice  is  regarded  as 
having substantial added value both for enforcers (NCAs) 255 and for businesses and other 
categories  of  stakeholders 256 .  In  this  respect,  the  evaluation  results  show  that  the 
existence  of  different  merger  control  regimes  or  different  authorities  enforcing  Articles 
101 and 102 TFEU entails the risk of divergent interpretation of the same or similar legal 
concepts.  Examples  of  such  divergences  in  market  definition  have,  for  example,  been 
identified  by  the  evaluation  of  the  Vertical  Block  Exemption  Regulation257 and  also  by 
the support study accompanying this staff working document.  

While  those  instances  are  not  widespread  and  mainly  pertain  to  market  definition 
questions  in  relation  to  new  business  models  or  changing  business  environments,  all 
respondents  saw  the  Notice  as  a  useful  starting  point  from  which  questions  of  market 
definition could be faced and consider that such divergences would likely increase in the 
absence of a Notice. In particular, the Notice’s broad nature was regarded as an asset in 
that it enabled it to remain (mostly) up to date and overall accessible to different groups 
of stakeholders not sharing a common field of specialisation. In the words of a business 
stakeholder: ‘The notice as it is currently drafted avoids the pitfall often blamed on new 
legal  texts  for  focusing  on  specific  cases,  unnecessarily  complicating  the  rules  and 
making  them  harder  to  understand.  Completing  and  adapting  the  Notice  to  the  new 

255 See Summary of the NCA consultation. 
256 See Summary of the public consultation. 
257  Commission  staff  working  document,  Evaluation  of  the  Vertical  Block  Exemption  Regulation, 

SWD(2020)173final, 8 September 2020, at page 61. 

65 

 
                                                 
challenges faced by many market[s] with the digitalisation and globalisation should not 
lead to a loss of this quality’258. 

Having said this, some NCAs and respondents to the public consultation also suggested 
potential ways in which the Notice could further boost its added value. This included the 
possible  addition  of  examples  and  references  to  case-law.  A  number  of  NCAs  also 
suggested  paying  more  attention  to,  and  giving  more  explanations  of,  regional  and 
national markets. 

Concerning the second question, the evaluation results indicate that the Notice has for the 
most part helped align the NCAs’ and Commission’s definitions of the relevant markets 
and  that  NCAs  and  the  Commission  have  generally  used  the  Notice  in  a  consistent 
manner  when  enforcing  EU  competition  rules.  Three  respondents  to  the  public 
consultation  who  disagreed  with  this  statement  found  that  market  definitions  were  not 
always aligned across Member States or with the Commission, flagging the risk of legal 
uncertainty that this could entail.  

Finally,  the  evaluation  results  also  showed  that  the  Notice  further  contributed  to  the 
alignment  of  national  competition  laws  by  influencing  the  way  in  which  markets  are 
defined in the application of national competition laws. This alignment – flagged by the 
stakeholders  replying  to  the  public  consultation259 and  also  by  the  NCAs260 –  seems  to 
have  taken  place  by  implementing  what  stakeholders  have  called  a  ‘harmonised 
methodology’.  Moreover,  during  the  consultations  and  meetings  held  as  part  of  the 
evaluation,  NCAs  themselves  confirmed  this  alignment  and  indicated  that  they  often 
consult the Notice for national proceedings and quote it in their respective decisions261 or 
internal procedural documents262. This alignment could be regarded as a further positive 
effect insofar as it reduces regulatory fragmentation along national borders and provides 
businesses with  a series  of common principles,  many of which can be used concerning 
proceedings on the basis of both EU and national competition laws.  

6.  CONCLUSIONS  

The purpose of the evaluation was to assess the functioning of the Notice 23 years after 
its publication, including  an assessment  of market  developments  and evolutions in  best 
practices in market definition.  

Overall, the evidence gathered in the evaluation suggests that the Notice is a very useful 
instrument that remains highly relevant. The Notice facilitates competition enforcement 
and compliance in the EU by providing transparency on an important first step in many 

258 Reply of a business organisation to question VI.1.1 of the public consultation questionnaire.  
259 See Summary of the public consultation. 
260 See Summary of the NCA consultation. 
261 See,  for  example,  point  270  of  the  French  NCA’s  decision  of  19  December  2019  in  relation  to  the 
implementation  of  anticompetitive  behaviour  in  the  sector  of  online  search  advertising,  available  at 
https://www.autoritedelaconcurrence.fr/sites/default/files/integral_texts/2020-02/19d26.pdf. 

262 See, for example, the Spanish NCA’s ‘Methodology for the preparation of market studies’, at point 127. 

Available at https://www.cnmc.es/file/126383/download.  

66 

 
                                                 
of  the  Commission’s  competition  assessments  and  by  allowing  companies  to  better 
anticipate  whether  the  Commission  may  raise  competition  concerns.  The  evaluation 
results  also  show,  however,  that  the  Notice  does  not  fully  reflect  developments  in  best 
practices in market definition that have taken place in the period since its inception. 

More  specifically,  the  evaluation  results  suggest  that  while  the  Notice’s  objectives 
remain highly relevant, the Notice is effective in reaching its objectives in many, but not 
all  respects.  Furthermore,  the  evaluation  results  show  that  the  Notice  pursues  its 
objectives efficiently and coherently, and that it provides EU added value. However, the 
evaluation  results  suggest  as  well  that  there  are  areas  where  the  Notice  may  not  fully 
reflect developments in the Commission’s approach and latest developments in EU case-
law. 

Relevance  

that 

indicate 

the  objective  of  providing 

The need to facilitate competition enforcement and compliance in the internal market to 
the benefit of consumers remains pertinent today. It is one of the goals of the Union, and 
one  that  has  been  reflected  in  the  EU  treaties  since  the  EU’s  inception.  The  evaluation 
results 
through  correct, 
comprehensive and clear guidance on the Commission’s approach to market definition is 
still very relevant when it comes to meeting those needs and in some respects even more 
important today than in 1997. First, this is due to the sustained need for the Commission 
to  carry  out  market  definition  assessments.  Second,  the  Notice’s  importance  is  also 
illustrated  by  the  frequent  use  that  the  Commission,  the  EU  Courts,  NCAs  and 
stakeholders  make  of  it  in  practice.  Third,  the  Notice  today  satisfies  more  needs  than 
when adopted in 1997, for example as a result of the antitrust self-assessment system in 
place  since  2004  and  the  use  of  market  share  thresholds  in  the  antitrust  and  merger 
systems. 

transparency 

Effectiveness  

The  evaluation  results  indicate  that  the  Notice  is  effective  in  providing  guidance  and 
transparency  to  stakeholders  in  many,  but  not  necessarily  in  all  respects.  Three  main 
cross-cutting conclusions deserve highlighting. 

First,  on  key  issues,  the  Notice  continues  to  provide  correct,  comprehensive  and  clear 
guidance on market definition, in particular by adequately summarising best practices in 
market  definition  as  derived  from  EU  case-law,  from  Commission  competition  cases, 
from  the  practice  of  other  leading  competition  authorities  and  from  academic  research. 
The role of market  definition and its basic principles  have remained largely unchanged 
since 1997 and have been confirmed in large parts in judgments of the EU Courts. The 
Commission’s market definitions continue to be guided by the definition of product and 
geographic markets on the basis of demand-side and supply-side substitutability, relying 
on short term and effective constraints in that assessment, taking into account price and 
non-price parameters, and carrying out reviews on a broad basis of evidence. This further 
extends 
imports  and  potential 
competition,  including  the  distinction  between  the  market  definition  phase  (where 
potential  competition  is  not  considered)  and  the  competitive  assessment  phase  (where 

to  considerations  on  competitive  pressure  from 

67 

 
potential competition is considered and where import competition will also be considered 
even if it did not result in a wider market definition). 

Second,  the  evaluation  results  also  suggest  that  there  are  areas  where  the  Notice  might 
not  be  fully  up  to  date,  including  evolutions  set  out  in  EU  case-law.  For  instance,  the 
Commission  has  refined  its  approach  to  market  definition  in  line  with  the  theories  of 
harm  investigated,  the  prevailing  market  conditions  and  the  sophistication  of  available 
tools. Such areas include:  

- 

- 
- 
- 
- 
- 
- 
- 
- 
- 

the  difference  between  antitrust  and  merger  assessments  and  the  possibility  to 
define different markets for the same economic activity more in general;  
the role of market definition in differentiated markets;  
the practice of leaving market definitions open;  
the precedent value of market definitions; 
the temporal dimension of market definition;  
the use and purpose of the SSNIP test in different market constellations;  
certain issues concerning supply substitutability;  
the assessment of market definitions in rapidly evolving markets;  
asymmetric constraints; 
the  assessment  of  geographic  markets  in  conditions  of  globalisation  and  import 
competition, including clarifications about global market definitions;  

-  quantitative techniques; 
- 
the role of trade flows; 
- 
the assessment of price differences in geographic market definition; 
- 
the assessment of price discrimination; 
- 
the use of companies’ internal documents as evidence in market definition; 
- 
the calculation of market shares; 
- 
aftermarkets and clusters;  
- 
chains of substitution; and 
-  non-price competition, including innovation.  

Third, the evaluation results indicate that while the principles of market definition remain 
unchanged (as outlined earlier is this section) their application in digital contexts can lead 
to  additional  complexities  that  may  not  be  fully  addressed  in  the  Notice.  These  are 
linked,  among  others,  to:  (i)  defining  markets  for  multi-sided  platforms,  in  particular 
where services are supplied at zero monetary price; (ii) defining markets for ‘ecosystems’ 
or for data; or (iii) assessing online vs offline competition. Digitisation may also lead to 
new  barriers  to  entry  and  switching  costs,  including  due  to  the  role  of  data  and  data 
portability,  interoperability,  privacy  considerations,  networks  effects  or  single-/multi-
homing.  Digitisation  may  also  increase  the  need  to  reflect  non-price  considerations  in 
substitution  assessments.  The  evaluation  results  also  show,  however,  that  not  all  of  the 
market  definition  issues  arising  as  a  result  of  digitalisation  have  settled  into  best 
practices, but rather that practices are likely to evolve further in the future – which may 
make it challenging to provide exhaustive and future-proof guidance on all of the issues 
in  an  updated  Notice.  These  results  further  highlight  that  any  potential  update  to  the 
Notice should reflect principles rather than specific market definitions; in other words, to 
go beyond having a Notice solely built as a compilation of case-law and case practice. 

68 

 
Efficiency  

The  evidence  gathered  in  the  evaluation  suggests  that  there  appear  to  be  no  costs 
associated  with  the  Notice  as  compared  to  a  scenario  where  no  guidance  would  be 
provided. On the contrary, the Notice generates benefits not only for the Commission’s 
work but also for the stakeholders using it. This is because,  by clarifying the principles 
the  Commission  takes  into  account  when  defining  markets  and  the  most  important 
elements used by the Commission in that process, the Notice helps companies to reduce 
costs,  including  (i)  costs  associated  with  external  legal  assistance,  and  (ii)  costs  of 
competition  law  infringements  stemming  from  an  incorrect  assessment  of  their  market 
position  (legal  fees  and  fines  as  well  as  negative  effects  of  losing  investments  or 
changing commercial  strategy). There is  evidence to  suggest  that  those savings may be 
significant  although  they  could  not  be  quantified  precisely  in  the  evaluation. 
Nevertheless, the results of the evaluation also indicate that the benefits of the Notice for 
both  stakeholders  and  the  Commission  could  increase  if  the  Notice  was  updated  in 
relation to certain specific points.  

Coherence  

The  evidence  gathered  in  the  evaluation  suggests  that  the  different  components  of  the 
Notice operate well together and that they are  generally in  line with  other antitrust  and 
merger  guidance,  case-law  and  other  EU  policies.  Nevertheless,  the  results  of  the 
evaluation indicate that the Notice does not reflect certain clarifications stemming from 
the  judgments  of  the  EU  Courts  and  that  it  has  not  been  updated  by  reference  to  the 
merger control standard of ‘significant impediment to effective competition’ introduced 
by the 2004 EU Merger Regulation.  

The  evaluation  also  highlighted  the  need  to  ensure  coherence  in  the  future  between  a 
potential review of the Notice and the parallel reviews of some of the antitrust guidance 
documents. 

EU added value  

The evaluation suggests that the Notice has had additional added value by helping ensure 
a  consistent  approach  to  EU  competition  rules  among  the  NCAs  and  the  Commission, 
and by offering a common point of reference for NCAs, including in the interpretation of 
national competition laws. The results of the evaluation also show that the added value 
could be higher if the Notice was easier to use, for instance and where appropriate, if it 
included  examples  or  references  to  the  case-law  underlying  its  statements  or  provided 
guidance  on  market  definition  issues  in  national  and  regional  markets  which  are  often 
relevant for NCAs. 

It follows from the above that there is a continued need for a Notice to provide guidance 
on the Commission’s approach to market definition. However, the results also show that 
there are areas where the Notice might not be fully up to date in light of evolutions in the 
EU  Courts’  case  law,  refinements  to  the  Commission’s  case  practice  and  that  of  other 
competition authorities and latest findings of academic research.  

69 

 
 
*****  

70 

 
 
 
ANNEX 1: PROCEDURAL INFORMATION  

1.1. Lead DG, Decide Planning/CWP references 

DG  Competition  is  the  lead  DG  for  the  evaluation  of  the  Notice.  The  evaluation  was 
registered in the Decide Planning with the reference PLAN/2020/7511. 

1.2. Organisation and timing 

The evaluation roadmap was published on 3 April 2020. The evaluation roadmap set out 
the  background  of  the  evaluation  as  well  as  its  purpose  and  scope.  The  evaluation 
roadmap  also  presented  the  consultation  activities  to  be  conducted  by  the  Commission 
services in  the context  of the evaluation  (notably a public consultation,  exchanges with 
European and foreign NCAs and possible discussions with stakeholders). The evaluation 
roadmap  also  explained  the  methodology  that  would  be  followed  to  gather  relevant 
information for the purpose of the evaluation. This includes a review of the case practice 
of the Commission and of NCAs, an analysis of the case-law of the EU Courts on market 
definition, and a review of latest economic thinking on market definition principles and 
practice. 

The  evaluation  was  carried  out  in  close  cooperation  with  other  interested  Commission 
services.  The  inter-service  steering  group  (‘ISSG’)  set  up  for  that  purpose  comprises 
representatives  of  the  Directorates-General  AGRI,  CLIMA,  CNECT,  DEFIS,  ECFIN, 
EMPL,  ENER,  ENV,  FISMA,  GROW,  HOME,  JUST,  MARE,  MOVE,  RTD,  SANTE 
and  TRADE,  as  well  as  the  Secretariat-General  and  the  Legal  Service,  which  are 
associated by default with any such initiative. The ISSG was consulted on the evaluation 
roadmap,  the  consultation  strategy  and  the  online  evaluation  questionnaire  aimed  at 
collecting  the  views  of  the  stakeholders  in  the  public  consultation.  The  ISSG  also 
reviewed the summary of the results of the public consultation and was consulted on the 
tender specifications of the evaluation study. Finally, the ISSG was consulted on the draft 
SWD conclusions. 

The different milestones of the evaluation phase are reflected in the table below: 

Timing 

30 March 2020 

3 April 2020 

30 April 2020 

Step 

Launch of the evaluation in the Commission’s Decide planning 

Publication of the evaluation roadmap (4-week feedback period) 

ISSG  meeting  to  introduce  the  evaluation:  objectives,  timeline 
and next steps 

19 May 2020 

ISSG  meeting  to  discuss  the  draft  questionnaire  for  the  public 
consultation and the research work streams of the evaluation 

26 June 2020 

Publication  of  the  online  evaluation  questionnaire  (14-week 
consultation period) 

71 

 
8 September 2020 

Signature of the contract for the evaluation support study 

4 December 2020 

ISSG meeting to present an overview of the feedback received 
in the public consultation and in the NCA consultation 

18 December 2020 

15 January 2021 

23 March 2021 

Publication  of  the  summaries  of  the  open  public  consultation 
and the consultation with NCAs 

Publication  of  the  contributions  received  in  the  context  of  the 
open public consultation 

Upstream meeting with the Regulatory Scrutiny Board (‘RSB’) 

ISSG meeting to discuss the draft staff working document 

5 May 2021 

Consultation of the RSB in written procedure 

7 May 2021 

Positive opinion by the RSB with comments 

19 May 2021 

ISSG meeting to discuss implementation of RSB comments 

4 June 2021 

Publication of the external support study 

17 June 2021 

ISSG Meeting to discuss the final draft staff working document 

1.3. External evaluation support study 

As explained in Section 4.1, DG Competition commissioned a support study in order to 
support  it  in  its  analysis.  Specifically,  the  purpose  of  the  support  study  was  to  gather 
qualitative  information  on  the  basis  of  three  tasks:  (i)  review  of  decisions  by  NCAs, 
judgments by national courts and guidelines issued by NCAs in the EEA; (ii) review of 
selected  decisions,  judgments  by  national  courts  and  guidelines  issued  by  competition 
authorities  outside  the  EEA  (namely  Australia,  Brazil,  Canada,  Japan,  South  Africa, 
South Korea, the UK and the US); and (iii) review of the legal and economic literature. 
Most of the materials analysed under (i) were gathered by DG Competition via the NCA 
consultation.  

The evaluation study was tendered on the basis of DG Competition’s framework contract 
for evaluations and impact assessments in the field of antitrust. The framework contract 
is based on the cascade procedure, according to which a request for an offer for a specific 
contract is made to the first placed tenderer, who can then decide to submit an offer or to 
reject  the  request.  In  the  latter  case,  the  request  is  passed  on  to  the  second  placed 
tenderer.  The  framework  contract  was  signed  in  early  September  2020  with  two  of  the 
three  tenderers  who  had  participated  in  the  tender  procedure.  The  first  placed  tenderer 
was  a  consortium  led  by  VVA  Brussels  (an  Italian-based  business  consultancy),  which 
includes  Grimaldi  Studio  Legale,  LE  Europe,  Österreichisches 
für 
Wirtschaftsforschung  and  WIK-Consult.  The  second  placed  tenderer  was  a  consortium 

Institut 

72 

 
 
led by BKP Economic Advisors, which includes Analysys Mason, Deutsches Institut für 
Wirtschaftsforschung and Learlab.  

the  evaluation  study  with 

The first placed tenderer under the framework contract was invited to submit an offer for 
the evaluation study on 9 July 2020. On the basis of this offer, DG Competition signed 
led  by  VVA  on 
the  contract  for 
8 September 2020. Due to special circumstances, the contractor was granted an extension 
of eight working days to deliver the final report of the study, initially scheduled for a 20-
week duration. The contractor submitted the interim report of the evaluation study to the 
Commission on 12 November 2020 and the final  report on 9 February 2021; after some 
further revision, the final report was approved on 21 May 2021.  

the  consortium 

1.4. Consultation of the Regulatory Scrutiny Board 

The outcome of the RSB consultation was a positive opinion, issued on 7 May 2021. The 
following table provides information on how the comments made by the RSB were 
addressed in this staff working document: 

RSB comments 

Action taken 

discretion 

The report should clarify in how 
far  case  law  and  case  practice 
determine  the  content  of  the 
Notice.  It  should  show  how 
the 
much 
Commission  has,  within 
the 
boundaries  of 
the  guidance 
provided  by  the  Court,  to  shape 
the  content  and  the  level  of 
detail of the Notice. In so doing, 
it  should  specify  the  trade-offs 
and 
(too)  detailed 
guidance. 

risks  of 

the 

report 

should 

baseline 

further 
The 
by 
develop 
describing  how 
stakeholders 
would  act  in  the  absence  of  the 
Notice  and  the  costs  and  risks 
they  would  face.  It  should  also 
describe 
the  market 
definition  practice  by  national 
competition  authorities  could 
diverge  more  without 
the 
Notice. 

how 

regards 

the  EU  as 

Sections  5.2  and  5.3,  as  well  as  Section  4  on 
methodology,  have  been  amended  to  address  the 
Board’s  comments  in  this  respect.  The  report  now 
makes  clear  that  the  CJEU  remains  the  ultimate 
judicial  authority  of 
the 
interpretation  and  application  of  EU  competition  law 
and that the Notice is without prejudice to the Court’s 
interpretation  of  competition  law.  At  the  same  time, 
the  report  now  explains  that  the  Notice  goes  beyond 
providing  a  repertory  of  case-law  and  that  the 
Commission  has  a  certain  degree  of  discretion  as  to 
how it shapes the content of the Notice and its level of 
detail by codifying best practices as derived from EU 
case-law,  from  the  practice  of  the  Commission  and 
other 
leading  competition  authorities  and  from 
academic research.  

The description of the baseline scenario under Section 
2.5  now  provides  more  detailed  explanations  about 
what stakeholders would have to do in the absence of 
the  Notice.  Sections  2.3,  5.1,  5.3  and  5.5  also  reflect 
the types of costs and problems faced by the different 
stakeholders were the Notice not to exist.  

Furthermore,  Section  5.5  has  been  amended  to  better 
reflect, first, the type of divergences that could exist in 
the absence of a Notice and, second, the way in which 
the  current  Notice  is  helping  achieve  a  common 
approach to market definition. 

73 

 
The  report  should  assess  how 
future-proof the Notice is in the 
context of increased competition 
the 
in  global  markets  and 
and 
evolving 
digital 
the 
economy. It should also explore 
the appropriate balance between 
broader  principles  and  case  law 
and practice driven guidance. 

technological 
transformation  of 

Sections 5.1 and 5.2 now discuss the way in which the 
in  an  evolving 
Notice  can  remain  future-proof 
economic  context.  Section  5.3  also  provides 
additional  ideas  on  how  a  revised  Notice  could 
continue to be future proof.  

Section  2.3  dealing  with  the  Notice’s  intervention 
logic  now  also  presents  an  explanation  of  the  trade-
offs to be considered when including broad principles 
or case-specific guidance in the Notice. 

In addition to the comments set out above, the RSB provided some technical comments, 
which were taken into account when finalising the staff working document.  

1.5. Other evidence, sources and quality 

As explained in Section 4.1, for the purposes of the evaluation, the Commission services 
assessed the Commission’s own case practice as well as the judgments of the EU Courts. 
For  this  assessment,  the  Commission  services  focused  on  decisions  and  rulings  issued 
after  the  adoption  of  the  current  Notice  in  1997.  However,  the  research  also  took  into 
account  decisions  and  rulings  preceding  that  date.  While  both  antitrust  and  merger 
legislation  underwent  substantial  changes  during  the  period  in  question,  with  the 
adoption of Council Regulation 1/2003 and the Merger Regulation, those changes did not 
have any effect on the robustness of the research. This was because the purpose and goals 
of market definition remained unchanged.  

The Commission services also reviewed academic books, articles, papers and summaries 
of  roundtables  on  the  topic  of  market  definition  held  in  the  context  of  international 
forums  such  as  the  OECD  and  the  ICN.  Relevant  materials  also  included  pre-existing 
materials  on  different  competition  law  topics  prepared  or  commissioned  by  the 
Commission or its departments and that have been presented in Section 4.1, such as the 
2016 study on geographic market definition by Professors Lyons and Fletcher, the 2017 
e-commerce  sector  inquiry  and  the  2019  special  advisor  report  on  Shaping  competition 
policy in the era of digitisation. 

The Commission services also:  

-  carried out extensive research into best practices in market definition;  
-  analysed  decisions  and  notices  on  market  definition  by  all  EEA  NCAs  and  by 

EEA national courts;  

-  considered  non-EEA  approaches  to  market  definition  based  on  exchanges  with 
competition  enforcers  in  Australia,  Brazil,  Canada,  Japan,  South  Africa,  South 
Korea, the UK and the US.  

The analysis of the EEA and non-EEA materials was also furthered by the support study 
presented in the previous section. While the Commission services cannot ensure that all 
relevant cases and judgments have been communicated to it by the consulted authorities, 
all  authorities  contacted  agreed  to  take  part  in  the  exercise  –  at  times  with  extensive 

74 

 
 
teams made up of experts from their different teams. This illustrates the importance given 
to the project by the Commission’s counterparts and ensured the robustness of the results. 

As explained in Section 4.1, for the purposes of the evaluation, the Commission services 
assessed the Commission’s own case practice as well as the judgments of the EU Courts. 
For  this  assessment,  the  Commission  services  focused  on  decisions  and  rulings  issued 
after  the  adoption  of  the  Notice  in  1997.  However,  the  research  also  took  into  account 
decisions  and  rulings  preceding  that  date.  While  both  antitrust  and  merger  legislation 
underwent  substantial  changes  during  the  period  in  question,  with  the  adoption  of 
Council Regulation 1/2003 and the Merger Regulation, those changes did not have any 
effect  on  the  robustness  of  the  research.  This  was  because  the  purpose  and  goals  of 
market definition remained unchanged.  

The Commission services also reviewed academic books, articles, papers and summaries 
of  roundtables  on  the  topic  of  market  definition  held  in  the  context  of  international 
forums  such  as  the  OECD  and  the  ICN.  Relevant  materials  also  included  pre-existing 
materials  on  different  competition  law  topics  prepared  or  commissioned  by  the 
Commission or its services departments and that have been presented in Section 4.1, such 
as the 2016 study on geographic market definition by Professors Lyons and Fletcher, the 
2017  e-commerce  sector  inquiry  and  the  2019  special  advisor  report  on  Shaping 
competition policy in the era of digitisation. 

The Commission services also:  

-  carried out extensive research into best practices in market definition;  
-  analysed  decisions  and  notices  on  market  definition  by  all  EEA  NCAs  and  by 

EEA national courts;  

-  considered  non-EEA  approaches  to  market  definition  based  on  exchanges  with 
competition  enforcers  in  Australia,  Brazil,  Canada,  Japan,  South  Africa,  South 
Korea, the UK and the US.  

The analysis of the EEA and non-EEA materials was also furthered by the support study 
presented in the previous section. While the Commission services cannot ensure that all 
relevant cases and judgments have been communicated to it by the consulted authorities, 
all  authorities  contacted  agreed  to  take  part  in  the  exercise  –  at  times  with  extensive 
teams made up of experts from their different teams. This illustrates the importance given 
to the project by the Commission’s counterparts and ensured the robustness of the results.  

75 

 
ANNEX 2: STAKEHOLDER CONSULTATION 

2.1. The stakeholder engagement strategy 

This  Annex  presents  the  results  of  the  consultation  activities  carried  out  in  the  context  of  the 
Notice’s evaluation. 

As  presented  in  the  evaluation  roadmap,  the  objective  of  the  stakeholder  consultation  was  to 
deliver  an  in-depth  evaluation  of  high  quality  on  whether  the  Notice  fulfilled  its  objectives  of 
providing  guidance  and  transparency  and  whether  there  was  a  need  to  update  it  in  light  of 
developments since 1997.  

The stakeholder consultations were carried out on a broad basis in order to gather the views from a 
diverse  group  of  stakeholders.  Stakeholders  whose  views  fed  into  the  present  staff  working 
document included: 

1.  businesses and their associations, including SMEs; 
2.  trade associations and labour unions;  
3.  consumers, in particular through consumer organisations; 
4.  national  authorities,  including  national  ministries  and  regional  bodies  (given  the  technical 
aspect of the consultation, competition law enforcers in the EEA and elsewhere were explicitly 
targeted); 

5.  international organisations; and 
6.  the general public, in particular through the open public consultations. 

2.2. Consultation activities 

2.2.1.  Consultation on the evaluation roadmap 

The  evaluation  roadmap  was  open  for  feedback  between  3 April  and  15 May 2020.  During  that 
period, the Commission services received 44 formal submissions on the published roadmap. 

In  their  replies,  respondents  overwhelmingly  welcomed  the  evaluation  of  the  Notice  and 
considered market definition as relevant. Respondents considered that there was a need to review 
the  Notice  not  as  a  means  of  criticism  (no  respondent  explicitly  advocated  discontinuing  the 
Notice  or  market  definition  as  an  exercise)  but  rather  to  bring  the  review  up  to  the  current 
economic, legal and societal standards. 

Directly  related  to  this  need  to  modernise  the  Notice,  a  majority  of  respondents  called  for  it  to 
better deal with digitisation and its distinguishing traits. In this respect, several respondents argued 
that  the  dynamic  nature  of  the  digital  economy  may  require  a  more  nuanced  way  to  draw  the 
boundaries  of  relevant  markets,  while  paying  greater  attention  to  the  competitive  assessment. 
Closely  linked  to  this  need  to  nuance  the  use  of  market  definition,  respondents  also  requested 
better  explanation  of  the  fact  that  market  definition  is  a  means  –  and  not  an  end  in  itself  –  that 
should help preserve legal certainty. 

The  importance  of  consumer  welfare  and  the  relative  weight  of  pricing  also  featured  high  on 
respondents’  agendas:  numerous respondents  cited the importance of better codifying the use of 
non-pricing analyses, which are regularly used by the Commission, but which are afforded little 

76 

 
space  in  the  Notice.  Respondents  highlighted  that  the  Notice  lacks  adequate  guidance  on  the 
principles detailed in the SSNIP test, on when and how it should be carried out, and on possible 
alternatives  (e.g.  the  SSNDQ  test)  for  zero-price  markets  or  markets  where  non-monetary 
parameters are especially prominent. 

The relationship between supply-side substitutability and the assessment of potential competition 
was  also  identified  as  needing  clarification,  both  as  regards  the  product  and  geographic 
dimensions.  

Finally,  respondents  also  flagged  how  market  definition  may  need  to  become  more  forward-
looking, if anything to be able to take better into account innovation pipelines, also in relation to 
potential competition. 

2.2.2.  Open public consultation  

The  public  consultation  was  open  between  26 June  and  9 October 2020.  During  this  period,  86 
stakeholders  submitted  replies  through  the  Commission’s  Better  Regulation  portal.  A  further  10 
stakeholders also publicly submitted their opinion to the Commission services in the context of the 
public consultation, but not through the Commission’s Better Regulation page263.  

In  terms  of  categories  of  respondents  to  the  public  consultation,  the  large  majority  of  the 
respondents  were  businesses  or  business  associations  (that  is  72  respondents,  of  which  43  were 
businesses  and  29  business  associations,  corresponding  to  84%  of  all  respondents).  Other 
respondents  included  public  bodies  (7  respondents,  or  8%)  as  well  as  representatives  of  civil 
society including EU citizens (3 respondents, or 3.5%), a consumer organisation (1 respondent, or 
1%), a trade union (1 respondents, or 1%) and others (2 respondents, or 2%). 

In terms of size of respondents, almost 60% (corresponding to 51 respondents) indicated that they 
are a large organisation (i.e. more than 250 employees). 12% (corresponding to  10 respondents) 
stated that they are medium-sized (i.e. between 50 and 249 employees), while 14% (corresponding 
to 12 respondents) indicated that they are a small organisation (i.e. from 10 to 49 employees), and 
12%  (corresponding  to  10  respondents)  stated  that  they  are  micro-sized  (i.e.  between  0  and  9 
employees). 

As to the geographical distribution of responses, the large majority of respondents were from an 
EU Member State (67 respondents). 12 respondents were from the UK and 6 were from the US. 

Respondents to the consultation were also overall familiar with the Notice and over 75% of them 
had assessed relevant product and geographic markets over the past 5 years, mainly in the context 
of  performing  antitrust  and  merger  assessments  under  both  EU  and  national  laws.  Detailed 
responses were obtained regarding the five criteria for better regulation. 

263  The  replies  submitted  by  these  respondents  largely  mirrored  those  submitted  through  the  open  public 
questionnaire.  Given  that  these  respondents  submitted  their  replies  as  free  text  and  did  not  follow  the  pre-set 
questionnaire, it has been impossible to include the replies of these respondents in the percentages discussed in 
this section. 

77 

 
                                                 
First,  regarding  the  relevance  of  the  Notice,  there  was  near  consensus  among  respondents  that 
there  was  still  a  need  for  it  to  provide  correct,  comprehensive  and  clear  guidance  on  market 
definition  (all  but  two  of  those  expressing  an  opinion).  At  the  same  time,  several  respondents 
noted  that  the  Notice  needs  to  be  updated  to  reflect  developments  in  case-law,  as  well  as 
technological  and  economic  developments  that  have  changed  the  way  certain  markets  function. 
Respondents generally indicated that the Notice helped companies assess the compliance of their 
activities  with  competition  rules  and  improved  the  predictability  of  competition  authorities’ 
assessments, thereby contributing to legal certainty and to a reliable business environment.  

Second,  concerning  the  effectiveness  of  the  Notice,  the  majority  of  respondents  indicated  that 
there were points of continuity that have not changed since 1997. There was broad consensus that 
these points of continuity should continue guiding the principles of the Notice going forward, such 
as the basic principles of market definition and the role of market definition as a framework for 
the competitive assessment.  

While there was agreement among respondents that many of the principles expressed in the Notice 
did  not  need  to  be  changed,  most  respondents  indicated  that  there  were  major  trends  and 
developments  that  needed  to  be  reflected  in  updated  guidance.  Among  these,  nearly  all 
respondents  who  expressed  a  view,  including  all  stakeholder  categories  (business  community, 
public  bodies  and  civil  society),  identified  digitalisation  as  a  trend  that  had  affected  the  way 
markets work, noting that these developments are not always reflected in the Notice. Respondents 
indicated that the multi-sided nature of platforms and the prevalence of ‘digital ecosystems’ were 
relevant  for  market  definition.  Moreover,  they  also  indicated  that  products  or  services  that  were 
offered  for  free  (zero-price  markets)  and  the  growing  importance  of  data  were  all  elements  on 
which the Notice lacks adequate guidance. In addition to digitisation, respondents also requested 
guidance  on  the  ways  in  which  market  definition  deals  with  innovation,  including  the  types  of 
situations  where  competition  from  innovative  players  outside  the  product  market  should  be 
considered in market definition. Other topics raised in the consultation, but for which there was no 
consensus, included the question of whether potential competition should be taken into account at 
the  stage  of  market  definition,  and  the  weight  to  be  given  to  supply-side  and  demand-side 
substitutability as a means to achieve a dynamic assessment of market definition. 

These  comments  were  also  translated  into  the  views  expressed  by  the  different  respondents  as 
regards the different sections of the Notice264. 

Respondents  expressed  overall  support  for  the  idea  that  the  Notice  provided  correct, 
comprehensive  and  clear  guidance  as  regards  the  definition  of  the  relevant  market,  although 
around half of the respondents only partially agreed to that statement and considered that changing 
market  realities  could  be  included  in  the  Notice.  Some  respondents  also  pointed  out  that  the 
wording  of  the  Notice  should  be  harmonised  with  the  ‘significant  impediment  of  effective 
competition’ test of the 2004 EU Merger Regulation, and that more clarify was needed as regards 
the  differences  in  approach  between  (backward-looking)  antitrust  and  (forward-looking)  merger 
cases. 

264 See Summary of the public consultation. 

78 

 
                                                 
On the question of whether the Notice provided correct, comprehensive and clear guidance on the 
basic principles for market definition, there was mixed feedback from respondents. Respondents 
recognised  the  established  sources  of  competitive  constraints  to  be  the  main  sources.  However, 
they  considered  that  there  was  a  need  to  adapt  them  on  demand-side  substitutability,  with  most 
respondents  calling  for  the  importance  and  use  of  the  SSNIP  to  be  limited.  Respondents  also 
called  for  further  details  and  explanations  on  supply-side  substitutability,  and  several  of  them 
criticised the brief explanations on potential competition in the Notice.  

There  was  mixed  feedback  on  whether  the  Notice  provided  correct,  comprehensive  and  clear 
guidance  on  the  process  of  defining  the  relevant  market  in  practice.  More  specifically,  on 
geographic markets, most respondents considered that the list in the Notice (national, EU-wide or 
EEA-wide)  could  be  supplemented  to  include  global  markets,  some  of  which  were  allegedly 
becoming  more  frequent  in  light  of  digitisation.  Many  respondents  also  took  the  view  that 
investigations were at times creating an unnecessary administrative burden and proposed to make 
requests for information more targeted and less broad. 

As  to  whether  the  Notice  provided  correct,  comprehensive  and  clear  guidance  on  the  evidence 
needed  to  define  the  relevant  product  and  geographic  market,  there  was  mixed  feedback.  Some 
respondents  expressed  the  opinion  that  previous  decisions  should  be  the  starting  point  of  the 
assessment.  Others  argued  instead  that  Commission  should  have  the  burden  of  proving  that  the 
market definitions in those decisions were still valid. Some respondents indicated the relevance of 
including  references  to  examples  and  previous  cases  in  the  Notice.  Respondents  called  for 
updating  the  list  of  quantitative  techniques  and  indicated  that  the  Commission  should  rely  on  a 
variety  of  evidence  when  defining  markets  (consumers’  and  competitors’  views,  internal 
documents,  evidence of  switching, industry  experts…). New trends such  as personalised pricing 
should also be considered for inclusion in the new Notice. 

There  was  also  mixed  feedback  regarding  whether  the  Notice  provided  correct,  comprehensive 
and  clear  guidance  on  the  calculation  of  market  shares.  Some  respondents  questioned  what 
evidence  should  be  used  in  the  case  of  services  provided  at  a  zero  monetary  price,  multi-sided 
platforms, online services, ‘digital ecosystems’ and data markets. Some respondents also indicated 
that,  especially  in  digital  markets,  static  market  shares  could  not  be  a  good  indicator  of  market 
power  and  that  competitive  constraints  from  outside  the  market  and  from  potential  competition 
should also be considered. 

There  was  also  mixed  feedback  about  whether  the  Notice  provided  correct,  comprehensive  and 
clear  guidance  on  the  additional  considerations  detailed  in  the  Notice.  The  topics  mentioned  as 
needing guidance included digital markets (including multi-sided platforms, zero monetary prices 
and  the  role  of  data),  innovation  and  rapid  evolving  markets,  bidding  markets,  captive  sales, 
aftermarkets and bundles. 

Third, on efficiency, all respondents who expressed a view agreed that the net benefits associated 
with following the guidance described in the Notice were positive compared to a situation without 
the  Notice  in  place.  In  other  words,  respondents  agreed  that  the  Notice’s  benefits  exceeded  its 
costs.  Respondents,  however,  were  not  able  to  find  a  way  to  quantify  the  Notice’s  net  benefits, 
even  though  they  stated  that  it  improved  legal  certainty  in  a  way  that  helped  companies  reduce 
costs. Respondents explicitly mentioned: (i) costs associated with external legal assistance (as at 

79 

 
least  a  part  of  the  assessment  can  be  carried  out  in-house);  (ii)  costs  of  competition  law 
infringements  stemming  from  an  incorrect  assessment  of  their  market  position;  and  (iii) 
opportunity costs. 

Fourth, respondents to the public consultation were in consensus or expressed a strong agreement 
regarding the Notice’s internal and external coherence.  

Most respondents expressing a view on the Notice’s internal coherence indicated that its different 
components work well together without apparent contradictions, while a fifth indicated that there 
are  contradictions  between  its  different  components.  Of  the  respondents  that  disagreed,  several 
pointed out that despite identifying ‘three main sources of constraints’ (para. 2), the Notice put the 
emphasis on the demand side, while seemingly putting supply-side and potential competition at a 
different  level  and  only  dealing  with  them  at  later  stages  in  the  Notice  (paras.  20  and  24 
respectively). Some respondents also flagged the need to rethink whether the Notice was coherent 
in relation to digital markets. 

On  external  coherence,  around  four  fifths  of  the  respondents  expressing  a  view  agreed  that  the 
Notice  was  coherent  with  other  instruments  providing  guidance  on  the  interpretation  of  the  EU 
antitrust  and  merger  rules.  Respondents’  comments  highlighted  the  need  to  ensure  coherence 
during  ongoing  reviews  of  antitrust  Block  Exemption  Regulations  and  also  flagged  some 
perceived incoherencies. The issue flagged most prominently was the need to change the merger 
dominance  test  appearing  in  the  Notice  to  adapt  it  to  the  ‘significant  impediment  to  effective 
competition’ test of the Merger Regulation. Respondents also flagged a number of judgments by 
the EU Courts which should inform the new text of the Notice. 

The  views  on  the  Notice’s  coherence  with  existing  or  upcoming  EU  legislation  or  policies 
(including legislation and policies in fields other than competition law) were more divergent than 
on other coherence topics.  In this respect,  first,  almost  half of the respondents  did  not  express  a 
view;  and,  second,  of  those  expressing  a  view,  around  half  agreed  on  the  existence  of  such 
coherence.  In  addition  to  the  need  to  ensure  coherence  with  the  ongoing  reviews  of  the  Block 
Exemption  Regulations,  respondents  noted  the  importance  of  keeping  coherence  between  the 
Notice  and  the  Commission’s  work  on  the  proposals  for  a  Digital  Markets  Act  and  a  Digital 
Services  Act  –  adopted  on  15 December 2020,  after  the  conclusion  of  the  public  consultation 
featured in this summary. 

Fifth,  respondents  overwhelmingly  acknowledged  the  Notice’s  EU  added  value.  Respondents 
noted  that  it  contributed  to  legal  certainty  and  that  having  a  Notice  at  EU  level  enabled  the 
development  of a common analytical  framework for authorities to  enforce and for companies to 
self-assess. Nearly all respondents expressing a view also agreed that having and EU-level Notice 
had helped align the definition of the relevant markets by the NCAs and the Commission. 

2.2.3.  Summary of the targeted consultation of national competition authorities 

In the context of the ECN – a network bringing together the Commission, the EFTA Surveillance 
Authority and all the NCAs of the EEA – the Commission services submitted a questionnaire to 
gather their views on the five evaluation criteria of the Notice. The Commission services received 
29 responses, 27 of which came from EU national competition authorities. 

80 

 
First,  on  relevance,  NCAs  generally  indicated  that  they  consider  the  objectives  pursued  by  the 
Notice  to  be  still  relevant.  These  objectives  are  namely  to  provide  correct,  comprehensive  and 
clear guidance on market definition in EU competition law. NCAs flagged that the text is a useful 
tool  for  companies  and  their  advisers  and  for  competition  authorities  when  considering  how  to 
define  relevant  markets  in  antitrust  and  merger  assessments.  Some  NCAs  indicated  the  Notice 
should be updated to provide guidance on rapid evolving markets in particular. 

Second, on effectiveness, nearly all NCAs that expressed a view considered that there were points 
of continuity that had not changed since 1997 and that should continue guiding the principles of 
the  Notice  going  forward.  These  included:  (i)  the  relevance  of  the  product  and  geographic 
dimensions  of  the  relevant  market;  (ii)  the  basic  principles  of  market  definition;  and  (iii)  the 
process and the type of evidence relied on in defining markets. 

While there was agreement that many of the principles expressed in the Notice did not need to be 
changed, most NCAs considered that there were major trends and developments that have affected 
the  Notice’s  application  and  need  to  be  reflected  in  it.  These  included:  (i)  the  impact  of 
digitalisation;  (ii)  the  proliferation  of  markets  with  non-price  competition;  and  (iii)  the 
development  of  quantitative  techniques  and  the  availability  of  data.  Other  trends  and 
developments  mentioned  were  the  need  for  updated  guidance  on  the  SSNIP  test  as  well  as  its 
conceptual  limitations.  It  was  also  mentioned  that  the  Notice  should  further  clarify  that  market 
definition is a tool to assist the competitive assessment rather than a goal in itself and that it could 
be left open even when competition concerns arise. 

There was overall support for the idea that the Notice provided correct, comprehensive and clear 
guidance  on  the  definition  of  the  relevant  market.  Still,  some  NCAs  were  of  the  view  that  the 
Notice is overly reliant on price analysis and that, particularly for digital markets where services 
are  often  provided  at  zero  monetary  prices,  it  should  rely  on  other  sources  of  evidence.  Some 
NCAs  pointed  out  that  the  wording  of  the  Notice  should  be  harmonised  with  the  ‘significant 
impediment of effective competition’ test of the 2004 EU Merger Regulation.  

As  for  whether  the  Notice  provided  correct,  comprehensive  and  clear  guidance  on  the  basic 
principles for market definition, there was mixed feedback from the NCAs. There was a general 
view  that  while  demand-side  substitutability  is  the  primary  concept  in  market  definition,  the 
situations  where  supply-side  substitutability  is  applicable  to  market  definition  should  be  further 
detailed in the Notice. Some NCAs noted that the SSNIP test was sometimes not fully applicable 
either  due  to  the  ‘cellophane  fallacy’,  lack  of  robustness  regarding  starting  points  and  inclusion 
candidates,  lack  of  data  or  limitations  in  its  applicability  to  geographic  market  definition.  Some 
NCAs  considered  that  this  is  particularly  true  as  regards  digital  or  zero-monetary-price  services 
and  they  suggested  that  authorities  should  rather  rely  on  other  elements  besides  price. 
Furthermore,  although  there  was  near  consensus  that  supply-side  substitution  and  potential 
competition  have  different  roles,  the  overall  view  was  that  more  guidance  was  needed  on  the 
differences between them. 

There was overall support for the idea that the Notice provided correct, comprehensive and clear 
guidance  on  the  process  of  defining  the  relevant  market  in  practice.  Several  NCAs,  however, 
indicated  that  the  Notice  should  provide  more  guidance  on  how  to  assess  the  geographic 
dimension  of  the  market,  noting  the  increased  difficulties  in  defining  geographic  markets  in  the 
context  of digitisation and e-commerce. While one NCA noted that the  Notice should  explicitly 

81 

 
refer  to  global  markets  in  its  text,  others  suggested  that  it  should  provide  more  guidance  on 
local/regional  markets.  Other  NCAs  considered  that  the  description  of  the  process  of  gathering 
evidence should take account of the techniques and technology currently used when defining the 
product and geographic markets. 

There  was  mixed  feedback  from  the  NCAs  on  whether  the  Notice  provided  correct, 
comprehensive and clear guidance on the evidence to define the relevant product and geographic 
market.  A  few  of  the  NCAs  asked  for  clarification  regarding  the  usefulness  of  previous  cases, 
case-law and decisions from NCAs to complement evidence, while others noted that explanations 
about how to weigh the different elements of evidence are necessary, in particular when there is 
conflicting evidence. Some NCAs noted that the list of evidence should include market evolutions 
in terms of digitisation (e.g. online vs offline sales, multi-sided platforms), non-price variables and 
globalisation, while one NCA explained that in rapidly evolving markets, past evidence was less 
relevant.  Some  NCAs  asked  for  more  clarity  on  the  need  for  more  examples  and  guidance  on 
types of price discrimination and on personalised and artificial intelligence pricing. Several NCAs 
considered  that  the  Notice  should  better  explain  under  which  conditions  the  guidance  on  trade 
flows can go beyond a static analysis and more into a dynamic hypothetical monopolist test, and 
when  evidence  on  trade  flows  can  be  conclusive  in  geographic  market  definition.  Other  NCAs 
considered that the Notice could provide some guidance on the different approaches to diversion 
to  other  areas  and  include  examples  of  the  methodologies  and  quantitative  tests  which  could  be 
used,  with  a  particular  emphasis  on  catchment  areas  and  isochrones.  Several  NCAs  were  of  the 
view that the Notice would benefit from more examples, taking into account developments in data 
analysis  and  availability.  Transportation  costs  and  barriers  to  entry  were  mentioned  among  the 
elements of geographic market definition that required more guidance as to their relevance. 

There  was  mixed  feedback  on  whether  the  Notice  provided  correct,  comprehensive  and  clear 
guidance on the calculation of market shares. Several NCAs noted that the Notice should clarify 
what type of instruments should be used in the case of services provided at a zero monetary price, 
multi-sided platforms, online services, platform ‘ecosystems’ and data markets. Others mentioned 
that it would be useful to illustrate the points made with some examples, for instance when to use 
volume, value, etc. Some NCAs explained that market shares were a static concept and should be 
complemented  with  elements  about  the  dynamics  of  an  industry  (e.g.  innovation,  multi-sided 
platforms), while others noted that clarification was  needed as regards the treatment  of in-house 
and captive sales.  

As  to  whether  the  Notice  provided  correct,  comprehensive  and  clear  guidance  on  the  additional 
considerations detailed in the Notice, there was mixed feedback. The topics mentioned by NCAs 
as  needing  guidance  included:  digital  markets  (including  multi-sided  platforms,  zero  monetary 
prices),  aftermarkets,  bidding  markets,  non-price  competition  (including  innovation),  bundles, 
asymmetric  substitution,  product  and  price  differentiation,  indirect  substitution  and  intermediate 
products.  On  chains  of  substitution,  some  NCAs  noted  that  it  may  not  be  necessary  to  refer  to 
them  anymore,  while  some  other  NCAs  asked  for  guidance  as  regards  breaks  in  the  chain,  the 
relation with the SSNIP test, the role of niche products, price differentiation, and the role of chains 
of substitution in geographic markets. 

Third, on efficiency there was consensus among the NCAs that expressed a view that the benefits 
of having the Notice in  place exceed its costs. Among the benefits,  NCAs noted that the Notice 
provides guidance and transparency to companies and their advisers and provides a reference tool 

82 

 
for  NCAs  that  do  not  have  their  own  market  definition  guidelines.  In  their  view,  this  ensures 
consistency across the ECN and is useful to courts reviewing competition cases. NCAs believed 
the costs of the Notice to be limited or even zero but noted that the actual cost is hard to quantify. 

Fourth,  on  coherence  NCAs  expressed  strong  agreement  that  the  Notice  is  internally  and 
externally coherent, in particular regarding: (i) the internal coherence of the Notice; (ii) coherence 
with antitrust instruments; (iii) coherence with merger instruments; (iv) coherence with EU case-
law; and (iv) coherence with EU policies. 

Sixth,  on  EU  added  value,  all  NCAs  expressing  a  view  were  in  consensus  that  the  Notice  had 
added  value  in  the  assessment  of  relevant  product  and  geographic  markets  when  applying  EU 
competition  law  (including  application  by  national  competition  authorities).  Similarly,  NCAs 
expressing  a  view  agreed  that  the  Notice  had  helped  align  the  NCAs’  and  the  Commission’s 
definitions of the relevant markets, by providing them with a useful focal point for their work. The 
NCAs  also  agreed  that  the  Notice  makes  their  antitrust  and  merger  work  more  effective.  Some 
NCAs  pointed  out  possible  ways  to  improve  the  Notice’s  EU  added  value.  These  suggestions 
included the inclusion of examples and references to cases and a better explanation of geographic 
market definition, including explanations regarding markets smaller than a single Member State, 
and the extent to which NCAs could in practice assess global markets with limited resources. 

2.2.4.  Summary of targeted stakeholder workshops 

The consultation activities also included the project team’s participation in a number of exchanges 
with  stakeholders  across  various  sectors.  Given  the  particular  circumstances  of  the  COVID-19 
crisis, all these exchanges took place in a virtual environment. 

First, DG Competition organised calls with national government bodies and NCAs who requested 
additional  information  on  the  evaluation  of  the  Notice.  The  Commission  services  ensured  the 
availability  of  the  information  to  all  Member  States  by  also  including  a  presentation  of  the 
evaluation to the Working Party on Competition in the Council of the European Union. 

Second,  DG  Competition  held  discussions  with  the  competition  authorities  of  Australia,  Brazil, 
Canada, Japan, South  Africa, South  Korea, the UK and the US.  These discussions informed the 
support study presented in Section 4.1. 

Third,  as  is  standard  practice  concerning  European  competition  policy  matters,  the  Commission 
services organised three meetings in the context of the ECN in order to gather NCAs’ views on the 
evaluation of the Notice. These meetings were complemented by a targeted consultation through a 
questionnaire, the replies to which are summarised in Section 2.2.3 of this Annex. 

In the 6 May meeting, the Commission services presented the review of the Notice by detailing: 
(i) the timeline of the process; (ii) the main anticipated subject matters for the evaluation; and (iii) 
the main steps of the process. 

The  NCAs  noted  that  they  regularly  use  the  Notice’s  main  principles.  They  also  found  that  the 
Notice  worked  quite  well  and  that  its  existence  was  very  relevant.  However,  they  very  much 
welcomed the Notice’s revision given recent developments in the economy, like digitalisation and 
the advent of zero-priced services, two-sided and quickly evolving markets.  

83 

 
Some general big-picture comments about the Notice were debated. These included the idea that 
market  definition  is  a  tool  to  assist  the  competitive  assessment  and  not  an  end  in  itself,  the 
limitations and further need for guidance on the SSNIP test and the reduced role of prices in the 
definition of technologically-advanced innovative markets. 

Other points for discussion centred on the practice of leaving the market definition open and the 
use  of,  and  need  for,  further  guidance  on  quantitative  techniques.  Specific  issues  regarding 
geographic market definition were also debated. These included the primary role of demand-side 
substitution,  where  to  draw  the  line  between  supply-side  substitution  and  potential  competition, 
the impact of globalisation and the need for guidance on local markets and catchment areas. 

Some  NCAs  also  expressed  the  view  that  there  is  value  in  having  a  broad  notice  focusing  on 
general principles that can remain in place for several years, as was the case for the original 1997 
Notice.  

In  the  16  December  meeting,  the  Commission  services  presented  the  outcomes  of  the  public 
consultation and of the NCA consultation. The discussions focused on two main topics: (i) general 
topics of market definition; and (ii) the effects of digitalisation on market definition.  

On general topics of market definition, NCAs explained that there are several case constellations 
where the market can be left open, in particular  where there is no legal consequence attached to 
the market share and/or where there is no effect on the substantive assessment, including in cases 
where  NCAs  find  competition  concerns.  Furthermore,  NCAs  indicated  that  there  may  be 
differences  in  the  relevant  market  definition,  including  depending  on  whether  this  relates  to  a 
merger  case  or  an  antitrust  case  and  the  concerns  analysed.  NCAs  added  the  following  as 
scenarios where different markets can be defined: (i) asymmetric substitution; (ii) if the theory of 
harm  concerns  increase  in  buyer  (as  opposed  to  selling)  power;  and  (iii)  if  an  innovation  (as 
opposed  to  price  or  other)  theory  of  harm  is  pursued.  NCAs  also  explained  that  potential 
competition  (in particular from  longer-term/future competitors) is  only taken into account  in  the 
competitive  assessment.  The  opposite  may  blur  the  lines  between  actual  competitors  and  more 
distant/future competitors, which would not help arrive at accurate results. 

In  relation  to  digitalisation’s  effects  on  market  definition,  and  in  particular  in  relation  to  the 
possibility  of  defining  one  or  multiple  markets  in  the  case  of  multi-sided  platforms,  NCAs 
indicated that in some cases one market was defined (for instance for classified ads, dating sites), 
while  in  others  a  market  for  each  side  of  the  market  was  considered  (for  instance  regarding 
advertisers,  food  delivery  platforms  and  end  users  in  social  networks  and  newspapers).  Aspects 
that tilt the balance in favour of defining a single market include, according to NCAs,  the fact that 
a  platform  is  transactional,  that  network  effects  affect  both  sides  of  the  market  and  that  the 
platform  can  be  considered  a  matching  one.  In  contrast,  when  demand  from  each  user  group  is 
very different (e.g. users and advertisers), substitution patterns are different and indirect networks 
effects  may  then  also  be  comparatively  lower,  different  markets  should  be  defined  according  to 
NCAs. Moreover, in the case of zero price services, there was a consensus on the need to focus on 
the functionalities and characteristics of the offered services and on switching behaviour. No NCA 
had defined markets using a SSNIP adapted to quality variations. Finally, NCAs stated that they 
had  looked  into  the  possibility  of  segmenting  retail  markets  into  offline  and  online,  including 
investigations into consumer behaviour by way of consumer surveys.  

84 

 
In  the  15 April  2021  meeting,  the  Commission  services  summarised  the  preliminary  findings  of 
the evaluation and the findings of the support study. The discussions focused on two main topics: 
(i) geographic market definition; and (ii) quantitative techniques. 

On  geographic  market  definition,  some  NCAs  indicated  that  trade  flows  and  imports  cannot 
constitute  conclusive  evidence  on  their  own  to  determine  the  geographic  market  definition  and 
should therefore be considered in conjunction with other elements. Furthermore, the markets could 
be  defined  as  regional,  national  or  EEA-wide,  even  though  there  are  substantial  imports. 
Catchment  areas  were  reported  to  be  used  widely  with  recent  progress  made  by  some  NCAs  in 
analysing  granular  shipment  or  customer  journey  data.  NCAs  pointed  out  that  supply-side 
substitutability should be taken into account  if it is  immediate and credible and if there are past 
examples  of  suppliers  switching  quickly  between  the  supply  of  different  goods  or  services. 
Nevertheless,  the  role  of  supply-side  substitutability  has  been  limited  in  defining  geographic 
markets. Moreover, even if a product could be traded in the EU and customers could buy products 
from  foreign  countries,  according  to  NCAs,  the  actual  conditions  of  competition  need  to  be 
assessed  to  define  the  geographic  market.  NCAs  identified  a  number  of  barriers  to  trade.  These 
included  transport  costs,  language  barriers,  diverging  local  consumer  preferences,  established 
customer  relationships,  and  reliability  of  delivery  and  delivery  time.  On  the  concept  of 
homogeneous conditions of competition, some NCAs indicated that they apply the standard. 

focus 

On  quantitative  techniques,  some  NCAs  reported  that  the  theoretical  concept  of  SSNIP  is  used 
frequently  with  a 
typically  on  demand-side  substitutability.  The  quantitative 
implementations  of  the  SSNIP  test  are  used  less  often  given  the  limitations  associated  with,  for 
instance,  the  cellophane  fallacy  or  its  application  to  multi-product  markets.  As  regards  in 
particular  the  data  used  when  performing  a  quantitative  SSNIP,  some  NCAs  indicated  that  they 
use  surveys.  Some  mentioned  that  they  apply  a  critical  loss  analysis  in  which  they  use  real 
switching  data  that  complement  consumer  surveys.  In  addition,  NCAs  pointed  out  other 
quantitative  techniques  applicable  in  the  market  definition,  such  as  catchment  areas  and  shock 
analysis  if  there  are  sufficient  data.  In  addition,  cross-price  elasticity  might  also  be  helpful 
according  to  some  NCAs.  The  last  point  for  discussion  centred  on  the  type  of  quantitative 
evidence  used  in  market  definition.  NCAs  expressed  the  view  that  surveys  are  a  useful  tool  to 
gather data if direct evidence, e.g. transaction data, is not available. Nonetheless, the phrasing of 
the  precise  questions  is  important  and  the  conduct  of  the  survey  may  pose  an  organisational 
challenge for the authorities. Moreover, responses in surveys might not always be reliable as they 
are  based  on  hypothetical  scenarios.  Finally,  NCAs  agreed  that  quantitative  evidence  is  often 
better  than  qualitative  evidence,  but  the  balance  between  quantitative  and  qualitative  elements 
depend on the availability of reliable data. 

Fourth,  exchanges  were  also  organised  with  European  consumer  organisations  (through  their 
umbrella organisation BEUC265), as well as with a number of private-sector stakeholders (e.g. the 
European Round Table for Industry, Eurocommerce). 

265

 Notes 

at 
https://ec.europa.eu/competition/consultations/2020_market_definition_notice/BEUC_workshop_on_market_defi
nition_2021.pdf  

available 

meeting 

the 

on 

85 

 
                                                 
ANNEX 3: METHODS AND ANALYTICAL MODELS 

Evaluation criteria and questions 

Relevance 

Does the Notice still pursue relevant objectives in aiming to provide guidance 
and  transparency  to  stakeholders  and  in  particular  to  provide  correct, 
comprehensive  and  clear  guidance  on  market  definition  in  the  Commission’s 
antitrust and merger assessments?  
How well do those objective correspond to the needs? 

Indicator 

Sources 

1. Importance of competition enforcement 
2. Number  of  competition  enforcement  decisions  with  market 

definition assessments 

3. Relevance of decentralised application of Articles 101 and 102 
4. Relevance  of  self-assessment  system  in  antitrust  and  of  market 

share thresholds in antitrust and merger control 

5. Frequency of the use of the Notice by the Commission, the EU 

Courts and stakeholders 

6. Adoption of similar documents at national level 

Effectiveness 

To  what  extent  has  the  Notice  proven  effective  in  providing  guidance  and 
transparency to all stakeholders?  
In  particular,  does  the  Notice  continue  to  provide  correct,  comprehensive  and 
clear guidance on market definition today? 

1. Main points of continuity and major trends and developments in 
market definition since 1997 
2.  Best  practices  in  market  definition  as  identified  in  EU  Court 
judgments,  Commission  practice,  NCA  practice,  NCA  guidelines 
and academic research 

Efficiency 

Has the Notice led to increased benefits and reduced costs?  
Is there scope for further simplification and cost reduction? 

1. Costs of using the Notice 
2. Benefits of using the Notice 
3. Savings in terms of administrative costs incurred by businesses 

86 

1. Public consultation  
2. NCAs consultation 
3. Stakeholder meetings  
4. Analysis of Commission decisions, EU Court 
judgments,  EEA  and  non-EEA  guidelines, 
national decisions and judgments, as  well as 
academic literature and other publications 

5. Support study 
6. Evidence 

gathered 
Commission initiatives 

through 

other 

1. Public consultation  
2. NCAs consultation 
3. Stakeholder meetings  
4. Analysis of Commission decisions, EU Court 
judgments,  EEA  and  non-EEA  guidelines, 
national decisions and judgments, as  well as 
academic literature and other publications 

5. Support study 
6. Evidence 

gathered 
Commission initiatives 

through 

other 

1. Public consultation  
2. NCAs consultation 
3. Stakeholder meetings  
4. Analysis of Commission decisions, EU Court 
judgments,  EEA  and  non-EEA  guidelines, 
national decisions and judgments, as  well as 
academic literature and other publications 

5. Support study 

 
 
Coherence 

How well have the different components of the Notice operated together? 
Is  the  Notice  in  line  with  the  judgments  of  the  EU  Courts  and  changes  in  the 
legal  competition  framework,  and  with  other  instruments  of  EU  competition 
policy and other EU policies? 

1. Level of internal coherence 
2. Level of external coherence 

EU added value 

To  what  extent  has  the  Notice  at  EU  level  provided  clear  added  value,  for 
instance  by  contributing  to  a  consistent  approach  to  market  definition  by  the 
Commission and the EU national competition authorities?  

1. Competence for designing EU competition law 
2.  Contribution  to  consistent  approaches  to  EU  competition  rules 
among the NCAs and the Commission 

1. Public consultation  
2. NCAs consultation 
3. Stakeholder meetings  
4. Analysis of Commission decisions, EU Court 
judgments,  EEA  and  non-EEA  guidelines, 
national decisions and judgments, as  well as 
academic literature and other publications 

5. Support study 
6. Evidence 

gathered 
Commission initiatives 

through 

other 

1. Public consultation  
2. NCAs consultation 
3. Stakeholder meetings  
4. Analysis of Commission decisions, EU Court 
judgments,  EEA  and  non-EEA  guidelines, 
national decisions and judgments, as  well as 
academic literature and other publications 

5. Support study 

87 

 
 
 
 
 
 
 
 
ANNEX 4: SUMMARY OF COSTS AND BENEFITS 

The costs and benefits associated to the Notice are specified below, 

Relevant agents 
Stakeholders 

Costs 
No costs 

European Commission 

No costs 

National authorities 

No costs 

Benefits 
Reduction in costs:266 
(i) 

costs  associated  with  external  legal  assistance  (as  at  least  a  part  of  the  assessment  can  be  carried  out  in-
house due to the Notice), and  

(ii)  costs  of  competition  law  infringements  stemming  from  an  incorrect  assessment  of  their  market  position 
(these  include  legal  fees  and  fines  as  well  as  negative  effects  of  making  investments  or  adopting  a 
commercial strategy that later needs to be changed). 

Increase in legal certainty and avoidance of the need to explain the basic principles of market definition in every 
case, thereby allowing the analysis to focus on the more important aspects of market definition.  

Provision  of  a  reference  tool  for  NCAs  that  do  not  have  their  own  market  definition  guidelines,  as  well  as  to 
courts reviewing competition cases.  
Ensuring of consistency across the ECN – including with NCAs that have issued their own guidance on market 
definition 

266   As  a  reference  one  can  consider  the  average  external  merger  review  costs  (including  legal  fees,  other  advisory  fees  and  translation  and  other  miscellaneous  costs)  which 

corresponded to EUR 700 000 per jurisdiction pursuant to the study quoted in footnote 234.  

88