Section I: Introduction
Section I(a): Background Information
The main goal of European competition law is to ensure the proper functioning of the internal market.[1] In practice, this means that businesses are to compete on equal terms across Member States, while at the same time being encouraged to offer better products at better prices for customers. European Competition law does so by, for instance, prohibiting anti-competitive agreements between undertakings and abuse of market position by dominant undertakings, which are likely to distort the internal market.
European competition law is often conceptualized as a triad, with Article 101 of the Treaty on the Functioning of the European Union (TFEU), Article 102 TFEU, and merger control serving as its ’three pillars’.[2] Whilst Article 101 TFEU is designed to prohibit cartels and prevent restrictive agreements, Article 102 TFEU targets abuses by companies holding a dominant position.[3] This legal publication will focus on the latter. This provision does not outlaw dominance per se, but imposes specific restrictions on dominant companies,[4] reflecting their ‘special responsibility’ not to impede market competition.[5]
In essence, Article 102 TFEU stipulates two major requirements: a dominant position on the relevant market and an abuse.[6] The concept of the ‘relevant market’ is crucial in this legal framework, as it forms the basis for determining dominance and potential abuse. Without a realistically defined relevant market, it would be challenging to assess whether a company truly holds a dominant position and if it is misusing its power. Since this first requirement is crucial, this will be the subject of this publication.
In the realm of European competition law, the methodology employed to define the relevant market in Article 102 TFEU cases is a fascinating blend of legal principles, economic theory, and market realities. It is a process that requires a deep understanding of market dynamics, consumer behavior, and the competitive strategies of firms.
Section I(b): Aim and Limitations
This article intends to give you a comprehensive yet accessible introduction to this methodology. It is designed to equip you, the reader, with the knowledge and understanding needed to define a relevant market accurately. Whether you are a legal practitioner, a student of competition law, or simply someone with an interest in the subject, this article promises that by the time you reach its conclusion, you will be armed with enough knowledge to not only be able to define the relevant market in a given case yourself, but also to debate and challenge its possible boundaries.
Nevertheless, this article contains a few important limitations. Indeed, we focus here on European competition law, which therefore excludes US Antitrust law’s methodology of the scope. Further, the analysis will solely focus on the assessment of dominance which is mitigated by Article 102 TFEU. Finally, in order to maintain a manageable scope, this article exclusively addresses traditional non-digital markets. The complex realm of digital multi-sided markets will be covered in a forthcoming article.
Section I(c): Outline
This article is divided into 6 Sections. Section I provides an introduction and outlines the aim of the present article: to understand the European Commission’s approach to defining the relevant market in Article 102 TFEU cases. Subsequently, Section II will delve into the often-debated role of the relevant market in such cases. Section III will then present a detailed explanation of the key elements in defining a relevant single-sided market, based on the European Commission’s guidelines and practices. In Section IV, the discussion will address multi-sided markets and in particular, it will focus on the challenges and the shift in methodology needed to assess non-digital multi-sided markets compared to single-sided markets. Section V will discuss the influence of market power on the European Commission’s methodology for defining traditional markets. Lastly, Section VI will conclude this article.
Section II: What are the essential elements when defining a market?
Section II(a): European Commission’s Notice (1997)
When assessing cases of abuse of dominance, a traditional and crucial starting point of the European Commission is to identify and define the relevant market(s) in which the given undertaking may be dominant.[7] According to the European Commission’s Notice (1997), the purpose of defining a market through its products sector and geographical area is to recognize which undertaking poses a competitive threat to the parties involved and are able to dictate their behavior by preventing them from acting without any competition in that particular sector or area.[8]
To do so, the European Commission firstly identifies the relevant product market and the relevant geographic market[9]. A relevant product market consists of all those products or services which the consumer perceives to be interchangeable or substitutable due to their qualities, cost and purpose[10]. A geographic market encompasses the area in which the undertakings are partaking in the supply and demand of products or services, where competition is relatively homogeneous, yet distinguishes itself from neighboring areas because of its appreciably different competitive conditions.[11] The relevant market within which to assess a given competition issue is established by the combination of the product and geographic markets[12].
The European Commission’s Notice (1997) outlines the procedure to be followed in order to delineate the relevant market. To do so, it is essential to ascertain the competitive constraints faced by an undertaking, which can be categorized into three main sources: demand substitutability, supply substitutability and potential competition.[13] The next paragraph will discuss the factors taken into account to determine the demand and supply substitutability.
The process of defining a market involves determining the viable alternative sources of supply for customers of the involved undertaking, in terms of both the products or services offered and the geographic locations of suppliers.[14] In the process of defining the relevant market, the product dimension is determined by the characteristics and specificity of the products and services, which may be determined by multiple factors, such as its intended use, evidence of substitution in the recent past, views on the boundaries of the product market of customers and competitors, barriers and costs associated with switching demand to potential substitutes, and quantitative tests for delineating market such as the Small but Significant and Non-transitory Increase in Price Test (SSNIP Test) which consists of increasing the price of product A by 5% or 10% and sees if consumers switch to product B.[15] If they do switch to product B, then they can be considered as competing in the same market, but if product A retains its customers despite the price increase, then it means that product A is in a different market from product B as there is no competitive constraint, thus no substitutability.[16] Nevertheless, the use of the SSNIP Test in cases of Article 102 TFEU may produce exaggerated results in the definition of the market, and may, in some cases, be inappropriate.[17] To sum up, defining a relevant product market involves assessing alternative supply sources, product characteristics, customer and competitor views, switching costs, and using quantitative tests like the SSNIP Test, although the latter may yield exaggerated results.
The geographic dimension is determined by the scope of the geographic market based on the distribution of market shares between the parties and competitors, as well as an analysis of demand characteristics to assess whether companies in different areas constitute a real alternative source of supply for consumers.[18] To do so, the European Commission may rely on past evidence of diversion of orders to other areas, basic demand characteristics (e.g: national brands, language, culture, etc.), views of customers and competitors, current geographic pattern of purchases, trade flows and pattern of shipments, barriers and switching costs associated to divert orders to companies in other areas.[19]
Section II(b): European Commission’s Practice (1983-2003)
The European Commission’s practices have shed more light on the process of determining the relevant market, including what factors should be taken into consideration. Four key aspects have emerged from its practices:
Firstly, the European Commission’s Notice of 1997 defines the relevant product market based on the principles established in case law. In order to determine if an undertaking possesses a dominant position in a particular market, the potential for competition must be evaluated in the context of the market.[20] This evaluation should take into account the totality of the products that are best suited to meet the ongoing needs of consumers and are not easily interchangeable with other products.[21]
Secondly, whilst it is important to consider whether one set of products or services can be substituted for another, this substitution may not be mutual, thus creating an asymmetric result.[22] For example, a customer may be able to substitute a laptop for a desktop computer, but a desktop computer may not be able to substitute for a laptop.[23]
Thirdly, the definition of the relevant product market should be founded upon the examination of the features of the products in question, which render them particularly apt to meet an inelastic demand and are only to a limited extent substitutable with other products,[24] in addition to being assessed in terms of the actual competition environment and the current dynamics of supply and demand on the relevant market.[25]
Fourthly, it is deemed essential to define the relevant market in order to identify whether an undertaking holds a dominant position, and to provide legal certainty about future application of the rules.[26] The definition of the relevant market should be neither too broad nor too narrow in order to accurately identify the market in which an undertaking is operating.[27] Nevertheless, the European Commission tends to define the product markets rather narrowly,[28] as exemplified by the United Brands Case.
In the United Brands case, the European Commission delineated the product market, asking whether bananas are to be considered as a part of the fresh fruit market, or if they belong only to the banana market, to the condition that such a market is distinct enough from the market of fresh fruits.[29] To answer this question, the European Commission had to assess whether bananas were considered as substitutable, and if they had special features distinguishable from other fruits.[30] Following an assessment on the special features of bananas, the European Commission concluded that the bananas were part of the banana market, which is sufficiently distinct from the fresh fruits market due to its unique characteristics.[31]
Moreover, even in cases related to merger control, the European Commission has a propensity for defining narrow product markets. For instance, it assessed that bottled mineral water and soft drinks constitute distinct markets due to their disparate characteristics (e.g. taste, composition), intended use (spring water being consumed primarily to assuage thirst whereas soft drinks are drunk more often in a social setting) and pricing.[32] Another instance which goes along these lines, the European Commission argued that popular and classical music constitute distinct markets, and within the former, a plethora of distinct genres (e.g. jazz, soul, gospel, heavy metal, rap and techno) are discernible, and these may also constitute separate markets.[33]
If two products compete in a relevant product market, they must also compete in a similar geographic market where the settings of competition are sufficiently homogeneous.[34] In the United Brands case, the European Commission carefully defined the geographic area in which the offered product, the bananas, was marketed and where the conditions of competition are homogeneous in this regard.[35] It concluded that Germany, Denmark, Ireland, the Netherlands and “The Bleu” were to be considered the geographic market in which the bananas of United Brands were marketed in the ordinary course of competition, but decided to exclude France, Italy and the United Kingdom due to both special circumstances relating to trading conditions and import arrangements, and to the fact that bananas of various types and origins are sold there.[36]
While United Brands argued that the conditions of competition in these countries were too distinct for these countries to be considered as one market, the European Court of Justice agreed with the European Commission, arguing that the conditions were sufficiently homogeneous to be considered as one market.[37] Therefore, the geographic market was separated into mere localized markets as opposed to being Europe-wide due to certain characteristics and conditions of the markets and of competition. In the case of Deutsche Bahn, there was a difference in tariffs applied on Western railway journeys and on Northern railway journeys.[38]
The General Court (GC) established that the geographical market does not need to have perfectly identical conditions of competition between traders.[39] Whilst it is enough if the conditions of competition are similar or close enough to each other, areas with too diverse conditions of competition cannot be considered to be part of the same market.[40] The GC therefore concluded that it is satisfactory that the conditions of competition are sufficiently homogeneous, thus forming a single market.[41]
In view of noteworthy developments in both judicial practice and market dynamics relating to the definition of the relevant market in 2022, the European Commission issued its draft revision of the Market Definition Notice.[42] In the draft, it reaffirmed its original intent and methodology for delineating a relevant one-sided market, as initially outlined in the 1997 Guidelines. For instance, it states that the definition of the relevant market involves defining both the product market and the geographic market, referencing the judgment of United Brands from 1978.[43]
It also states that the relevant product market includes all products that customers see as interchangeable.[44] This is based on the products’ characteristics, such as their prices, and intended use.[45] This analysis must be done in accordance with the competition conditions and the supply and demand structure in the market.[46] This methodology emerged in the 1979 Hoffmann-La Roche judgment.[47]
Whilst the 2022 Notice does not introduce much novelty in regards to one-sided markets, it does emphasize multi-sidedness. Inter alia, it reflects upon the lessons learned from case law, such as Mastercard, which introduced non-digital multi-sided market settings.[48]
The next section of this thesis will focus on the increased complexity regarding the definition of the relevant market in a multi-sided setting, which complicates, to a broader extent, the application of competition law.[49] The challenges identified in the process of defining a multi-sided market in the Mastercard case are even more pronounced in digital multi-sided markets due to, inter alia, the blurriness of the limits of such markets[50].
Section III: Multi-sided markets
Section III(a): What are multi-sided markets?
Many markets are single-sided. For instance, the United Brands case constitutes a single-sided market. Indeed, whilst the seller wants to sell the bananas, the buyer is interested in purchasing them. A single-sided market is therefore characterized by the meeting of objectives of two different groups.
A two-sided or multi-sided market, however, is characterized by the presence of multiple objectives and multiple groups meeting on the market.[51] The multi-sided market becomes a platform or an intermediary service that connects two or more distinct user groups having interrelated demands, such as buyers, sellers, authors, advertisers and readers, thus creating cross-group externalities.[52] For instance, a platform could gather consumers on the one side, advertisers on the other, and a football league selling its content in the middle.[53] To this extent, multi-sided markets can facilitate the interaction between multiple groups and create an interdependence between them, thus playing the role of “matching platforms”, especially in the case of digital platforms.[54] Non-digital instances of this type of market include, inter alia, payment systems.
The multi-sidedness of markets is therefore not a recent phenomenon. It has been debated among scholars for years, in addition to having been addressed by the competition authorities. When dealing with the market definition in a competition assessment involving a two-sided market or a multi-sided market, the delineation of the market is determined by whether distinct markets exist on either side of the platform, or if the platform itself is part of a broader market.[55]
Scholars tend to agree with the importance of considering both sides of the market, in addition to their interdependence, when dealing with market definition and market power.[56] One of the reasons for that is that in a two-sided market, the presence of indirect network effects binds together the demand for two distinct products which are sold on opposite sides of the two-sided market.[57] Indirect network effects occur when the value of a product or service increases as more people use it, even if those people are not directly connected to each other.
The question then emerges as to whether there are two distinct yet interrelated markets to be defined, or if there is a single market encompassing both aspects.[58] The inquiry in a case concerning payment cards is whether there exists a market for services related to payment cards, both for cardholders and merchants.[59] Whilst the literature ascertains that defining one or two markets is contingent upon the kind of two-sided markets in question, payment systems generally involve two-sided markets as they embody network externalities.[60] Indeed, in two-sided non-transaction markets, it is imperative to define two interdependent markets, whereas in two-sided transaction markets, only one market should be delineated.[61]
Section III(b): The MasterCard Case: Analysis
The MasterCard case provides an illustration of the added complexity of defining the relevant market in case of a multi-sided market. MasterCard operates a four-party payment card system, in which merchants pay the Multilateral Investment Fund (MIF) to their bank (the Acquiring Bank) when customers utilize a credit or debit card issued by their bank (the Issuing Bank) to pay for goods or services.[62] These schemes are two-sided in nature as the Issuing Banks and the Acquiring Banks engage in a competitive dynamic in order to attract the patronage of cardholders and merchants, respectively.[63] The two sides of this scheme are closely linked, as cardholders gain value from their cards, they must be accepted by merchants who benefit from accepting MasterCard cards when cardholders possess and use them.[64] The mutual benefit of MasterCard debit and credit cards to both cardholders and merchants is reflective of a network externalities approach.[65]
The competition issue at hand is that the establishment of MIFs by MasterCard, which applied to all cross-border card payments within the European Economic Area (EEA) and domestic card payments in Belgium, Ireland, Italy, the Czech Republic, Latvia, Luxembourg, Malta and Greece, constituted a decision by an association of undertakings that resulted in a limitation of competition between the participating banks.[66]
In order to define the relevant market, the Commission relied on its Visa II decision, which assessed that the payment cards industry is characterized by two-sided demand, with both cardholders and merchants forming distinct groups of consumers, in addition to indirect network effects.[67] MasterCard argues on three points when delineating its relevant product market.
Firstly, acquirers and issuers cooperate in a joint venture supplying a joint product, thus representing a joint demand.[68] Secondly, cash and cheques should be included as cardholders and acquirers compete with all other payment systems and forms of payment.[69] Thirdly, since giro transfers are widely used in certain EU Member States, such as Sweden, they should also be included in the product market.[70]
The European Commission starts its assessment by stating the importance of the interdependence of the two-sided demand, which therefore means that defining one broad market would be inappropriate.[71] While MasterCard argues that joint-demand requires the definition of one product market, the European Commission counter-argues that, although the demands are interrelated, the demand behavior of the two customer groups is significantly different which therefore does not constitute a sufficient argument for defining the market product as a single one.[72]
As to the two other points, the European Commission analyzed the substitutability of products, pricing and legal barriers on the supply and demand sides, as well as product characteristics, consumer behavior, and interchangeability on the demand side, finding that the supply and demand side analyses show that card acquiring services are neither sufficiently substitutable with cash and cheque related services, nor with bank giro, nor with direct debit services.[73] Most importantly, the European Commission found that the use of the SSNIP Test is inadequate in this context as it would result in a cellophane fallacy.[74] It also relied on case law to argue that payment card related services are part of a separate product market from other payment means.[75] It therefore concludes that the relevant product market is the market for acquiring payment cards.[76]
As to the relevant geographic market, MasterCard argues that it should be defined as community-wide. However, the European Commission assessed that, due to limited cross-border issuing and acquiring, heterogeneous market conditions and differences in pricing, the geographic market is to be defined as national,[77] in accordance with previous case law.[78]
In conclusion, the MasterCard case provides an example of the complexity of defining the relevant market in the case of a multi-sided market. The European Commission’s assessment of the case highlights the importance of considering both sides of the market, in addition to their interdependence, when dealing with market definition. Nevertheless, the methodology used by the European Commission when dealing with multi-sided markets in regard to market definition is, in this case, questionable, and has been heavily criticized by scholars.[79] Indeed, not only is it unclear how the European Commission took into account the multi-sidedness of the payment card system, but also how it stuck to its one-sided methodology by taking into account the usual parameters of competition, such as the substitutability of products and the difference in pricing. Applying one-sided logic to multi-sided markets may result in erroneous conclusions, as it has been demonstrated in scholarly works.[80] Moreover, it is essential for competition policy analysis to determine whether the markets being examined are two-sided or not, as many traditional economic results that form the basis of competition policy do not apply to two-sided markets, such as the SSNIP Test.[81] This is pertinent not only for the analysis of traditional two-sided markets, but also for digital multi-sided markets.
Section III(c): The Lessons from MasterCard
The European Commission encountered multi-sided markets for the first time in the MasterCard case, and has since accumulated knowledge and proficiency through various encounters with such markets, in addition to digital multi-sided markets. This expertise has been compiled in the 2022 Revised Guidelines, and applies to both digital and non-digital multi-sided markets. The European Commission learned three main lessons through the MasterCard case which may also be relevant in cases of digital MSP:
Firstly, it acknowledges that MSPs facilitate interactions between distinct user groups, resulting in a situation where the demand from one group has an impact on the demand from the other groups, thus leading to indirect network effects.[82] These are to be included when defining the relevant markets and/or in the competitive assessment.[83]
Secondly, the European Commission may define a relevant product market for the products offered by a platform as a whole, or it may define separate markets for the products offered on each side of the platform.[84] If there are significant differences in the substitution possibilities on the different sides of the platform, separate markets may be more appropriate.[85] Network effects and constraints from the other side of the platform may still be considered in the competitive assessment.[86]
Thirdly, the use of the SSNIP Test is difficult in multi-sided markets.[87] In lieu of the SSNIP Test, the European Commission will focus on the characteristics of the product, its intended use, data on potential substitution, and on competitive restraints based on industry perspectives, barriers or costs of transitioning such as interoperability with other products and licensing components.[88] An alternative tool to the SSNIP framework may be employed by assessing the switching behavior of customers in response to a small but significant non-transitory decrease of quality (‘SSNDQ Test’).[89]
The subsequent step of the competition authorities is to evaluate the market power of the undertaking within the defined relevant market. Section 2.3 will analyze the approach of evaluating market power in single-sided and multi-sided markets.
Section IV: Market Power
Section IV(a): Why is the inclusion of market power in the market analysis relevant?
As outlined in Section I, the first step in determining whether a company has abused its dominant position, according to Article 102 TFEU, is to establish that the company holds a dominant position in the relevant market.[90] Dominance, determined by market power, is therefore intrinsic to the relevant market analysis. Arguably, including market power in this article complements and verifies the assessment of the relevant market. If the relevant market has been defined too narrowly, or too broadly, then this will be reflected in the market power analysis and provide flawed results.
In multi-sided markets, there is a unique market power dynamic and interdependency between the markets.[91] On such markets, there are, among others, direct network effects and indirect network effects.[92] The former implies that a good will become more valuable as the number of users grows, such as a telephone network. The latter indicates that if the number of users of a good increases, then this will lead to more complementary products which raise the value of the good, which exemplifies the relationship between hardware and software. Indirect network effects can lead to a skewed pricing structure where one side may have low margins and appear highly competitive, whilst the other side may have high margins and appear less competitive.[93] It is therefore crucial to understand the intricacies of market power in order to correctly define the relevant market, as it allows for a more nuanced analysis of the challenges posed by multi-sided markets.[94]
Section IV(b): How to evaluate market power?
1) Dominance
Article 102 TFEU applies exclusively to undertakings having a dominant position on the relevant market.[95] The initial step in determining whether Article 102 TFEU applies to an undertaking necessitates a two-pronged assessment:
Initially, the relevant market must be delineated by defining the relevant product, geographic and temporal markets. This requires an analysis of the category of products that consumers perceive as substitutes due to their characteristics, usage and cost.[96]
Subsequently, the dominant position of the undertaking must be evaluated. Dominance has been defined, in case law, as enabling the undertaking to have “an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment”.[97] If an undertaking is found to be dominant on the relevant market, it is conferred a special responsibility which must be considered in the light of its actions and of the context.[98]
2) Market Power (European Commission’s Guidance Papers 1998-2009)
In order to determine whether an undertaking has market power in a relevant market, the Guidance Paper of 1997 mainly relies on the calculation of market shares, which can be calculated on the basis of the sales of the relevant product in the relevant area.[99] The Guidance Paper adds that both volume sales and value sales provide useful information in general, but also that sales in terms of value and their associated market share are typically examined to gauge the relative position and power of each supplier when dealing with differentiated products.[100]
In 2002, the European Commission clarified that the determination of market shares, which necessitates an evaluation of the availability of other producers of the same or of substitutable products, may be supplemented by an assessment of the magnitude of entry barriers as well as of the rate of innovation to assess market power.[101] According to the 2008 Guidance paper of the EC, dominance entails that competitive constraints are not sufficiently effective and hence that the undertaking in question enjoys substantial market power over a period of time.[102] An undertaking which is capable of profitably increasing prices above the competitive level for a significant period of time does not face sufficiently effective competitive constraints and can thus generally be regarded as dominant.[103]
3) Case law
In legal precedents concerning single-sided markets, the European Commission tends to heavily rely on market shares when determining dominance[104] and has implemented thresholds of market shares as indicators of dominance.[105] This view can be summarized by the ECJ’s statement that “the existence of a dominant position may derive from several factors […] among these factors a highly important one is the existence of very large market shares”.[106]
In AKZO, the ECJ has held that if an undertaking has more than 50% of market share, there is a presumption of dominance, and concluded that 50% of market share was enough to establish dominance in accordance with its statement in Hoffmann.[107] Such a presumption has been confirmed in subsequent case law.[108] United Brands held a market share of 40 to 45% according to the Court, which constituted dominance in a highly fragmented market, with the second largest undertaking enjoying 15-20% of the market and the rest significantly less.[109] In other case law, the ECJ determined that a market share between 70% and 80% is a sufficient indication of the presence of a dominant position,[110] and that no further evidence is necessary to establish dominance.[111]
Nevertheless, power dynamics in a two-sided market is completely different than in a one-sided context.[112] In a similar fashion to the delineation of a relevant market, it is necessary to consider both sides of the market when gauging the market power of an undertaking in a multi-sided setting.[113] Consequently, it will be necessary to draw upon multiple sources of evidence, in addition to considering the interrelated nature of demand, when assessing market power in a multi-sided setting.[114] Despite its utility, using market shares as an indicator of market power in multi-sided markets may not accurately reflect the actuality of the market’s dynamics.[115] The European Commission underscores that, while market share is a primary factor in assessing market power, other elements such as barriers to entry, access to specific assets and inputs, as well as product differentiation and degree of substitutability, may also be relevant in assessing the market power of an undertaking.[116] Therefore, when assessing market power in multi-sided markets, it is important to consider the network effects that may be present and how they may affect the market dynamics.
Section V: Conclusion
The 1997 notice issued by the European Commission and the subsequent case law have established a robust framework for accurately defining the relevant product and geographic market. This framework has proven effective in the context of single-sided markets. However, its application to multi-sided markets has presented challenges. The MasterCard case serves as a prime example of the complexities associated with defining the relevant market in the context of a multi-sided market. The European Commission’s evaluation of this case offers several key insights:
Firstly, it underscores the importance of considering both sides of the market, as well as their interdependence, when defining the market.
Secondly, it emphasizes the necessity of taking into account the unique characteristics of the specific market in question within the definition of the relevant market to ensure its accurate definition. The adoption of a single-sided approach to multi-sided markets is likely to lead to erroneous conclusions. For instance, the SSNIP Test was found to be unsuitable in the MasterCard case, which involved a multi-sided market. The same logic can be applied to the assessment of market power in both types of markets.
Thirdly, while market shares remain a primary factor in assessing market power in multi-sided markets, other elements such as network effects, barriers to entry, access to specific assets and inputs, product differentiation, and degree of substitutability must also be considered due to the unique nature of these markets.
In conclusion, delineating the market definition and assessing market power in a multi-sided setting requires a comprehensive approach that takes into account the market as a whole, as well as its particularities. The way digital multi-sided markets are complex and different from non-digital multi-sided markets has an impact on the approach used to identify the relevant market. A subsequent article will delve into the challenges associated with defining digital multi-sided platform markets.
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[1] Marja-Liisa Öberg, The Boundaries of the EU Internal Market (Cambridge University Press 2020) p129-180
[2] Lorenz Moritz, An Introduction to EU Competition Law (Cambridge University Press 2013), p31
[3] Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (2011/C 308/06)
[4] Lorenz Moritz, An Introduction to EU Competition Law (Cambridge University Press 2013), p188
[5] Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities [1983], §57
[6] Article 102 (ex Article 82 TEC) of the Treaty on the Functioning of the European Union
[7] Commission Notice on the definition of relevant market for the purposes of Community competition law (97/C 372/03) §2-4
[8] Ibid.
[9] Ibid.
[10] Ibid. §7-8
[11] Ibid.
[12] Ibid. §9
[13] Ibid. §13
[14] Ibid.
[15] Ibid. §13-24
[16] Ibid. §17
[17] Ibid. §36
[18] Ibid. §25-32
[19] Ibid.
[20] Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities [1983], §37
[21] Ibid.
[22] Case T-340/03, France Télécom SA v Commission of the European Communities [2007], §88–91
[23] For instance, a laptop can be characterized by its mobility due to its lightweight and portability, whereas a desktop computer is typically larger and heavier. While users who are interested in PCs will not take this characteristic into account, users interested in the portability characteristic of a laptop are not able to substitute a laptop for a personal computer.
[24] Case 6/72, Europemballage Corporation and Continental Can Company Inc. v Commission of the European Communities [1973], §32
[25] Case T-504/93, Tiercé Ladbroke SA v Commission of the European Communities [1997], §81
[26] Among others, Case 6/72, Europemballage Corporation and Continental Can Company Inc. v Commission of the European Communities [1973] and Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities [1983]
[27] Case T-61/99, Adriatica di Navigazione SpA v Commission of the European Communities [2003], §27
[28] Lorenz Moritz, An Introduction to EU Competition Law (Cambridge University Press 2013), p266
[29] Case 27/76, United Brands Company and United Brands Continentaal BV v Commission of the European Communities [1978], §12
[30] Ibid.
[31] Ibid. §12-35
[32] Case No IV/M.190, Nestlé/Perrier [1992]
[33] Case No IV/M.202, Thorn EMI/Virgin Music [1992]
[34] Case T-229/94, Deutsche Bahn AG v Commission of the European Communities [1997], §92 & Case 27/76, United Brands Company and United Brands Continentaal BV v Commission of the European Communities [1978], §11
[35] Case 27/76, United Brands Company and United Brands Continentaal BV v Commission of the European Communities [1978], §36-39
[36] Ibid. §36-38
[37] Ibid.
[38] Case T-229/94, Deutsche Bahn AG v Commission of the European Communities [1997]
[39] Ibid. §92
[40] Ibid.
[41] Ibid. §91-92
[42] Communication from the Commission: Commission Notice on the definition of the relevant market for the purposes of Union competition law
[43] Ibid. §12
[44] Ibid. §20
[45] Ibid.
[46] Ibid.
[47] Ibid.
[48] Ibid. §94-98
[49] Richard Whish and David Bailey, Competition Law (10th edn, Oxford University Press 2021) p35
[50] Marco Ardolino and others, ‘A Business Model Framework to Characterize Digital Multisided Platforms’ [2019] 6(1) Journal of Open Innovation: Technology, Market and Complexity
[51] Sean Silverthorne, ‘New Research Explores Multi-Sided Markets’ (Harvard Business School Working Knowledge, 12 March 2006)
[52] Ioannis Lianos, Competition Law for the Digital Era: A Complex Systems’ Perspective (University College London 2019) p73
[53] Richard Whish and David Bailey, Competition Law (10th edn, Oxford University Press 2021)
[54] Ioannis Lianos, Competition Law for the Digital Era: A Complex Systems’ Perspective (University College London 2019) p73
[55] Richard Whish and David Bailey, Competition Law (10th edn, Oxford University Press 2021)
[56] See, among others, David Evans, ‘The Antitrust Economics of Multi-Sided Platform Markets’ [2003] 20(2) Yale Journal on Regulation
[57] Lapo Filistrucchi, Market Definition in Multi-Sided Markets (OECD 2017)
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Ibid.
[62] Nicola Boyle and others, ‘Two-Sided Markets: Competition Law in Europe’ [2019] 33(3) Antitrust 72-77
[63] Ibid.
[64] Ibid.
[65] Ibid.
[66] Giovanni Scoccini, ‘The EU Court of Justice confirms a ruling of the General Court on multilateral interchange fees (MasterCard)’ (Concurrences, 11 September 2014)
[67] Case No COMP/29.373, Visa International – Multilateral Interchange Fee [2002], §82
[68] Case No COMP/34.579 MasterCard [2007], §251-§252
[69] Ibid. §253-§254
[70] Ibid. §255
[71] Ibid. §259
[72] Ibid. §268-277
[73] Ibid. §308-315
[74] Ibid. §286-287
[75] Ibid. §315
[76] Ibid.
[77] Ibid. §317-327
[78] Case No COMP/29.373, Visa International – Multilateral Interchange Fee [2002], §53
[79] See, inter alia, Julian Wright, ‘One-sided Logic in Two-sided Markets’ [2004] 3(1) Review of Network Economics, and Jens-Uwe Franck and Peitz Martin, Market Definition and Market Power in the Platform Economy (Centre on Regulation in Europe 2019) p30
[80] Julian Wright, ‘One-sided Logic in Two-sided Markets’ [2004] 3(1) Review of Network Economics
[81] Lapo Filistrucchi and others, ‘Identifying two-sided markets’ [2013] 36(1) World Competition : Law and Economics Review p33-60
[82] Communication from the Commission: Commission Notice on the definition of the relevant market for the purposes of Union competition law §94
[83] Ibid.
[84] Ibid. §95
[85] Ibid.
[86] Ibid.
[87] Case No COMP/34.579 Mastercard [2007], §286-287
[88] Communication from the Commission: Commission Notice on the definition of the relevant market for the purposes of Union competition law §96-98
[89] Ibid. §98
[90] Article 102 (ex Article 82 TEC) of the Treaty on the Functioning of the European Union
[91] D. Evans, Competition and regulatory policy for multi-sided platforms with applications to the web economy (Concurrences, 6 February 2008) p57-62
[92] Ibid.
[93] Ibid.
[94] D. Evans, Competition and regulatory policy for multi-sided platforms with applications to the web economy (Concurrences, 6 February 2008) p57-62
Giovanni Scoccini, ‘The EU Court of Justice confirms a ruling of the General Court on multilateral interchange fees (MasterCard)’ (Concurrences, 11 September 2014)
[95] Lorenz Moritz, An Introduction to EU Competition Law (Cambridge University Press 2013) p194
[96] Ibid.
[97] Case 85/76, Hoffmann-La Roche & Co. AG v Commission of the European Communities [1979], §39
[98] Among others, Case 322/81, NV Nederlandsche Banden Industrie Michelin v Commission of the European Communities [1983] §57 and Case T-203/01, Manufacture française des pneumatiques Michelin v Commission of the European Communities [2003] §97
[99] Commission Notice on the definition of relevant market for the purposes of Community competition law (97/C 372/03) §53
[100] Ibid. §53-55
[101] European commission, Glossary of terms used in EU Competition Policy (European Commission 2002)
[102] Communication from the Commission, Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (2009/C 45/02), §10
[103] Ibid. §11
[104] Frances Dethmers and Ninette Dodoo, ‘The abuse of Hoffmann-La Roche: the meaning of dominance under EC competition law’ [2006] 27(10) European Competition Law Review 537-549
[105] Lorenz Moritz, An Introduction to EU Competition Law (Cambridge University Press 2013) p198
[106] Case 85/76, Hoffmann-La Roche & Co. AG v Commission of the European Communities [1979]
[107] Case C-62/86, AKZO Chemie BV v Commission of the European Communities [1991] §60
[108] Case C-457/10 P, AstraZeneca AB and AstraZeneca plc v European Commission [2012] §167
[109] Case 27/76, United Brands Company and United Brands Continentaal BV v Commission of the European Communities [1978], §1
[110] Case T-30/89, Hilti AG v Commission of the European Communities [1991] §92
[111] Case T-65/98, Van den Bergh Foods Ltd v Commission of the European Communities [2003] §154
[112] Julian Wright, ‘One-sided Logic in Two-sided Markets’ [2004] 3(1) Review of Network Economics
[113]David Evans, ‘The Antitrust Economics of Multi-Sided Platform Markets’ [2003] 20(2) Yale Journal on Regulation
[114] Kate Collyer and others, Measuring market power in multi-sided markets: Hearing on Re-thinking the use of traditional antitrust enforcement tools in multi-sided markets (OECD 2017)
[115] Ibid.
[116] Communication from the Commission: Commission Notice on the definition of the relevant market for the purposes of Union competition law §104-110
