ERU, Alm.del - 2021-22 - Bilag 223: Notat og regeringens høringssvar til Europa-Kommissionens høring om meddelelsen om markedsafgræsning, fra erhvervsministeren

Erhvervsudvalget 2021-22
ERU Alm.del Bilag 223
Offentligt

8. marts 2022

The Danish Government’s response to

the initiative regarding an up-

date of the market definition notice

The Danish Government welcomes the opportunity to comment on the

Commission’s public

call for evidence regarding the initiative on updating

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 conside-

ring questions on how to define the relevant market in antitrust and merger

cases.

The Danish Government agrees

with the findings of the Commission’s

evaluation that the market definition notice

–

dating back to 1997

–

would

benefit from an update taking into account, among others, recent case law,

technological developments, and developments in the ways companies of-

fer their goods and services. An updated notice would continue to serve as

important guidance and a useful tool for companies and competition aut-

horities.

The Danish Government would like to repeat the following factors of im-

portance which the Commission should have in mind when drafting of the

updated market definition notice:

Bringing the market definition notice up to date, but no need for fundamen-

tal changes

We welcome the initiative of the Commission to update the 1997 market

definition notice. The Danish Government finds that the approach set out

in the market definition notice still serves as a solid foundation for the as-

sessment of the relevant market. Thus, there is no need for a fundamental

revision of the notice. The focal point of market definition must continue

to rest on credible empirical evidence. Therefore, the Danish Government

finds that the update of the notice should focus on introducing recent case

law as well as new investigative techniques and economic methods. The

updated notice should also address questions of how to define markets in-

volving new technologies or new ways of offering goods and services,

including in relation to situations that are not explicitly addressed in the

existing notice, e.g. multi-sided markets and products with a monetary

price of zero.

Effective and independent enforcement that continues to handle inherently

dynamic nature of market definition

ERU, Alm.del - 2021-22 - Bilag 223: Notat og regeringens høringssvar til Europa-Kommissionens høring om meddelelsen om markedsafgræsning, fra erhvervsministeren

It is essential to guarantee independent competition law enforcement in or-

der to ensure effective competition within the Single Market. Effective

competition benefits European consumers through lower prices, higher qu-

ality, more choice and increased innovation. Moreover, it is important that

competition law enforcement take due account of global competition and

other market dynamics, among others when assessing the relevant geogra-

phical market in a merger case.

The inherently dynamic nature of market definition is exemplified by the

fact that the Commission finds the geographical markets to be at least EEA-

wide or wider in an increasing share of its merger decisions. Furthermore,

competitive constraints from outside the geographical market are taken

into consideration in current practice, when such competitive constraints

are demonstrated. While the Danish Government finds the current ap-

proach to market definition fully suited for taking changing market condi-

tions into account

–

including analyses of the importance of global compe-

tition when relevant

– we agree with the Commission’s intention to update

the notice in order to better reflect the practice and methods concerning,

among others, the globalised nature of some commercial exchanges.

We hope these comments will be useful for your further work. The Danish

Ministry of Industry, Business and Financial Affairs would be at your

disposal for further elaboration or any follow-up questions you may have.