Erhvervsudvalget 2020-21
ERU Alm.del Bilag 16
Offentligt
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07 October 2020
The Danish Government’s response to the public consultation on the
evaluation of the market definition notice
The Danish Government welcomes the opportunity to comment on the
Commission’s public consultation regarding the ongoing review and eval-
uation of the market definition notice.
The notice offers highly relevant and useful guidance for companies and
their advisers as well as for national competition authorities when consid-
ering questions on how to define the relevant market in competition and
merger cases.
The Danish Government agrees that the market definition notice
–
dating
back to 1997
–
could benefit from an evaluation and a possible update tak-
ing into account, among others, recent case law and new technologies. An
updated notice would continue to serve as important guidance and a useful
tool for companies and competition authorities.
It is vital for the Danish Government that the current, fact-based approach
to market definition is maintained, and it is essential to guarantee that in-
dependent enforcement of antitrust and merger rules is based on verifiable
empirical evidence in order to ensure effective competition within the Sin-
gle Market. Effective competition in the Single Market is fundamental for
creating jobs, growth and prosperity in the EU, just as it is a prerequisite
for European companies’ possibility to compete successfully in the global
economy.
Responding to the public consultation, the Danish Government would like
to present the following factors of importance for the evaluation:
Bringing the market definition notice up to date, but no need for fundamen-
tal changes
We welcome the initiative of the European-Commission to evaluate and
possibly updating the 1997 market definition notice. The Danish Govern-
ment finds that the approach set out in the market definition notice still
serves as a solid foundation for the assessment of the relevant market.
Therefore, there is no need for a fundamental revision of the notice. The
focal point of market definition must continue rests on credible empirical
evidence.
Therefore, the Danish Government finds that the upcoming review should
focus on updating the notice in order to introduce recent case law and new
 ERU, Alm.del - 2020-21 - Bilag 16: EMs orienteringsnotat samt høringssvar vedr. meddelelse om markedsafgrænsning, fra erhvervsministeren
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investigative techniques and economic methods. It should also address
questions of how to define markets in markets involving new technologies
or situations that are not explicitly addressed in the existing notice, includ-
ing e.g. multi-sided markets and products with a monetary price of zero.
Effective and independent enforcement
It is still important that the competition law enforcement continue to take
due account of global competition, among others when assessing the rele-
vant geographical market in for instance a merger case. Moreover, it is es-
sential to guarantee independent enforcement in order to ensure effective
competition within the Single Market. However, the Danish Government
agree that there is a need to address distortions from foreign subsidies. Un-
regulated foreign subsidies risk distorting competition in the Single Market
leading to unfair competition between subsidized and non-subsidized com-
panies. But these challenges should be tackled with other instruments than
the competition and merger framework. Hence, we welcome a new legal
instrument to ensure that foreign subsidies do not distort our market as pro-
posed in the White Paper on levelling the playing field as regards to foreign
subsidies. In this regard, we would like to use the opportunity to refer to
our response on the public consultation on the Commission's White Paper.
Current approach is able to handle inherently dynamic nature of geo-
graphic market definition
The inherently dynamic nature of market definition is emphasised by the
considerable increase in the share of the Commission’s merger decisions,
where the Commission found geographical markets to be at least EEA-wide
or wider. Furthermore, we note that competitive constraints from outside
the geographical market are clearly taken into consideration in current prac-
tise, when such competitive constraints are demonstrated. Thus, the Danish
Government finds the current approach to market definition is fully suited
for taking changing market conditions into account, including analyses of
importance of global competition when relevant.