Last November the European Commission published a draft of the revised Market Definition Notice. The proposed revision addresses long-awaited clarifications and market developments, which will certainly improve compliance and facilitate antitrust and merger proceedings.

Last November the European Commission published a draft of the revised Market Definition Notice. The proposed revision addresses long-awaited clarifications and market developments, which will certainly improve compliance and facilitate antitrust and merger proceedings.

As a response to the Commission’s public consultation, Positive Competition took the opportunity to comment on the draft. The main overarching observation is that the Commission should clarify the causal link between theories of harm and market definition. While the Draft Notice hints that market definition is a mere tool to an end (the assessment of a theory of harm), it still creates the overall impression that market definition could be an independent step in proceedings.

Market definition can attract too much attention, not only to the detriment of the efficiency of proceedings, but also to the detriment of a proper articulation and documentation of the theory of harm related to the conduct or transaction at stake. It would therefore be useful if the Notice started with a clear and pedagogical description of the role of market definition in antitrust and merger proceedings. Such conceptual clarifications are necessary to embrace the correct reasoning behind the European Commission’s recent decisional practice.

The contribution also includes specific remarks on:

• local markets;
• the role of capacities and captive production in the computation of market shares;
• market definition for two-sided platforms; and
• the importance of translations.

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