Expert Economist George Siotis authored an article for Concurrences in which he argues that, in abuse proceedings involving both foreclosure and exploitative abuse, defining relevant markets conditional on the nature of the infringement offers a cogent framework. The insights also transpose to mergers.
Art 102 proceedings require concomitance: the incriminated undertaking must be deemed dominant at the time of the abuse. As a high market share is a necessary (but not sufficient) condition for establishing dominance, enforcers have had to define narrow (molecular level) markets in a number of recent cases involving the pharmaceutical industry. However, a narrow delineation was not supported by evidence pointing to intense non-price competition between similar drugs. This paper argues that defining relevant markets conditional on the nature of the infringement offers a cogent framework to establish market boundaries. Such an approach also can also lead to narrow markets, without having to Ignore evidence pertaining to non-price competition.
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This article was originally published by Concurrences here (subscription required). The views expressed in this paper are the sole responsibility of the author and cannot be attributed to Compass Lexecon or any other parties.