Market definition

from Wikipedia, the free encyclopedia

With the help of the market definition , the relevant market for the assessment of a dominant position is determined in German and European antitrust law . Because in order to assess whether a company is “dominant”, an assessment must be made to determine on which market this position could exist. For example, it makes a difference whether the assessment of the market power of a group like Chiquita is based on the entire global market for fresh fruit (there only a market share of 5%) or only on the market for bananas (there 50%). The relevant market must be delimited in terms of subject matter, geography and, if necessary, also in terms of time.

Objective market definition

The product market definition is the core of the market investigation. The question here is which goods / services the relevant market encompasses.

Demand market concept

In practice, the demand market concept has prevailed in Germany. According to this, all products and services are to be assigned to the relevant supply market which, from the point of view of the customer, are interchangeable in terms of property, purpose and price range to meet a specific requirement. The functional interchangeability of the goods / services from the point of view of the other side of the market is decisive. B. the consumer - at. What is decisive is the actual perception of the customer. A physical, technical or chemical identity is not necessary. It may well happen that the customer's opinion is narrower in some cases (separate market for clinker ; not a common market with cement or limestone) and in some cases broader (common market for pharmaceuticals and scientifically unsound products). When it comes to the question of functional interchangeability, the actual habits of the customer must not be disregarded: For example, wet and dry shaves are definitely interchangeable, but users usually do not change the system. Potential alternatives must also be considered. Accordingly, manufacturers who are able to adapt the properties of their goods to the similar needs of other customers must also be included in the relevant market (flexibility of supply changeover). For example, nothing prevents a manufacturer of pet food cans from producing cans for cat food in addition to those for dog food. A straddle carrier manufacturer , on the other hand, cannot easily build reach stackers .

The Commission is required under the market approach reinforces the criterion of (cross-) price elasticity. After the so-called SSNIP test (Small but significant and nontransitory increase in price), the question is asked whether the consumers are responding to an assumed small, but not entirely insignificant, permanent increase in relative prices (in the range between 5% and 10%). ) would switch to readily available substitutes for the products or areas concerned. However, this test is not undisputed. The SSNIP test can be misleading for dominant companies that are already able to operate independently of the market, as the price level of the dominant company's product may already be excessive (so-called cellophane fallacy). Accordingly, the BGH only accepts the test as one of many indicators.

Spatial market definition

Here, too, the functional interchangeability from the perspective of the opposite side of the market is crucial. The retail trade can cover its need for vacuum cleaner bags with the help of suppliers from all over Europe, while ready-mixed concrete can only be obtained within a limited area around the respective plant, while for drivers only those sign embossers that are only a few meters away from the respective registration office, be considered.

Temporal market definition

A time market is only to be used as an exception. For example, the advertising market for a single top football game can represent its own relevant market. However, as long as the competitive conditions do not change, they do not have to be divided into different periods of time.

Individual evidence

  1. ↑ Percentages only as examples. See ECJ, judgment of February 14, 1978 - C-27/76 - ECR 1978, 207 - United Brands and United Brands Continental v Commission.
  2. Jump up ↑ Most recently BGH, judgment of 6 December 2011 - KVR 95/10 - BGHZ 192, 18 = WuW / E DE-R 3591 - Total / OMV.
  3. ↑ WuW / E BKartA 2591.
  4. ↑ See Loewenheim / Meessen / Riesenkampff, Kartellrecht. 2 edition GWB § 19 Rn. 13.
  5. ↑ BKartA of July 23, 1992 AG 1992, 363 "Gillette Wilkinson". See also Immenga / Mestmäcker, competition law: GWB. Section 19 marginal no. 28.
  6. ↑ ECJ, judgment of February 21, 1973 - Case 6/72 - Slg. 1973, 215 - Continental Can / Kom.
  7. ^ BGH, decision of October 13, 2009 - KVZ 41/08 - juris.
  8. ↑ See announcement of relevant market point 17.
  9. ↑ Immenga / Mestmäcker, EU competition law. 5 ed. FKVO Art. 2 Rn. 52.
  10. ↑ BGH, decision of March 4, 2008 - KVR 21/07 - NJW-RR 2008, 996 - Soda-Club II.
  11. ↑ BGH, decision of October 5, 2004 - KVR 14/03 - WuW / E DE-R 1355 - vacuum cleaner bag market
  12. ↑ KG, judgment of October 1, 2009 - 2 U 10/03 Kart - WuW / E DE-R 2273 - Berliner Transportbeton.
  13. ↑ OLG Dusseldorf, WuW / E DE-R 2522, 2524 - Signs point Präger Bad Salzuflen.
  14. ↑ BGH WuW / E 2406, 2408 f. - Inter Milan game.
  15. ↑ Loewenheim / Meessen / Riesenkampff, antitrust law. 2 edition GWB § 19 Rn. 24.