European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The technical characteristics, prices and conditions of production are the main identification criteria upheld by the supervisory authorities.
1º Technical characteristics/functionalities
For the EU authorities, the attributes of a product are an essential factor when defining the market concerned. Products have little interchangeability where their technical differences create clearly distinct co …

Characteristics of product or service

The technical characteristics, prices and conditions of production are the main identification criteria upheld by the supervisory authorities.

1º Technical characteristics/functionalities

For the EU authorities, the attributes of a product are an essential factor when defining the market concerned. Products have little interchangeability where their technical differences create clearly distinct conditions of demand . Where a same product has different functions, only its primary function must then be considered . Other than technical characteristics , the quality of the service provided is a differentiating factor .

When defining the products or services, the EU authorities are not restricted to purely objective characteristics. Thus, the image  of a product or a service may create an attachment rendering the product specific. Likewise taste factors  can cause the competition authorities to distinguish a product even though other products have similar technical characteristics.

Complementary products or services may belong to the same market or to different markets, as the case may be. When the supply and demand stem from different operators and are related to specific products or services, the different stages of the same economic process constitute distinct markets. It is thus possible to distinguish the market of the raw materials necessary for the manufacture of a product from the market on which the product is sold , consumables from devices with which they are compatible  or new tyres from retreaded tyres . Where the user benefits from an additional service, a specific market exists. Such is the case of mobile or car phones that are distinct from traditional phones , services indispensable to professional dealers in respect of the sale of cars  or an antibiotic from other products of the same type insofar as it is part of the modern therapeutic compositions most frequently used to treat a particular type of disease . In the specific case of a secondary market complementary to a primary market, the supervisory authorities had to consider that an undertaking may be in a dominant position regarding its own products where the market of the secondary product is a captive market . Such is the case where access to the secondary market is prohibited to third party undertakings due to the fact that the dominant undertaking holds an intellectual property right . More generally, the Commission considers that a narrow definition of the secondary product market is relevant when the compatibility with the primary product is important .

The price may be a characteristic of the product or service and can be used to measure substitutability . Criteria of non-substitutability upheld by the EU authorities include the quality/price ratio , difference in prices of products , existence of higher profit margin ratios  or more advantageous prices . Furthermore, price is sometimes revealed to be a notably inadequate indicator. Where one of the products at issue is a monopoly product, its price is bound to be higher than it would be in a situation of normal competition. Two products that are non-substitutable in principle can thus become substitutable due to the exercising of market power. When a medicinal product proves to be clearly superior to others in therapeutic terms, or even represents the only therapeutic option recommended by the scientific community, it may be chosen by prescribers regardless of its price, even if that price is significantly higher than that of the other available medicinal products .

In defining the market, the supervisory authorities may also use the conditions of production for the product or service in question. According to the Court of Justice, products belong to distinct markets where they are individualized, not only by the mere fact that they are used for a purpose but by particular characteristics of production which make them specifically suitable for such purpose . The EU authorities therefore make a distinction between “artisan” ice cream, which is generally produced, distributed and consumed locally on a small scale, and industrial ice cream, which is produced for wide-scale distribution .

Case 322/81 Michelin v Commission [1983] ECR 3461, LawLex200400002959JBJ; Commission Decision No 89/93/EEC of 7 December 1988, Flat glass, LawLex200400002933JBJ; Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ; Case C-53/92 P Hilti v Commission [1994] ECR I-667, LawLex200400002899JBJ, See also, Commission Decision No 89/113/EEC of 21 December 1988, Decca Navigator System, LawLex200400002931JBJ; No 97/181/EC of 18 December 1996, Concerning the conditions imposed on the second operator of GSM radiotelephony services in Spain, LawLex200400002905JBJ; Case T-340/03 France Télécom v Commission [2007] ECR II-107, LawLex200700001499JBJ.

 For vitamins C and E, used both for bio-nutritive and technological purposes: Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ: when a vitamin has two uses, the product market cannot include all the products that may substitute for each of such uses insofar as all the products of such market do not substitute for each other.

Case 226/84 British Leyland v Commission [1986] ECR 3263, LawLex200400002950JBJ.

Commission Decision No 72/457/EEC of 14 December 1972, ZOJA/CSC - ICI (not available in English): ethambutol is more a complement to the other anti-tuberculosis products to which it is very often associated than their competitor even though it is part of the most used therapeutic compositions treating pulmonary tuberculosis.

See Case 22/78 Hugin v Commission [1979] ECR 1869, LawLex200400002970JBJ (market for spare parts for Hugin cash registers); Case T-30/89 Hilti v Commission [1991] ECR II-1439, LawLex200500004636JBJ (market for nails compatible with Hilti guns); Case T-69/89 RTE v Commission [1991] ECR II-485, LawLex200400002913JBJ, discussed by Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, LawLex200400002891JBJ (market for basic information used to compile cable TV channel program listings). In these cases, the definition of relevant market seems a consequence of an abuse (exclusion of manufacturers, service providers, or independent repairers) rather than a prerequisite to the finding of such an abuse.

Case T-69/89 RTE v Commission [1991] ECR II-485, LawLex200400002913JBJ; confirmed by Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743, LawLex200400002891JBJ on market for basic information used to compile cable TV channel program listings.

See in particular Case 226/84 British Leyland v Commission [1986] ECR 3263, LawLex200400002950JBJ, distinction between services indispensable for professional dealers and the sale of vehicles; Commission Decision No 88/138/EC of 22 December 1987, Eurofix-Bauco v Hilti, LawLex200400002445JBJ: distinction between consumables and devices with which they are compatible; Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ, distinction between derivatives and raw materials; Commission No 97/181/EC of 18 December 1996, Concerning the conditions imposed on the second operator of GSM radiotelephony services in Spain, LawLex200400002905JBJ, distinction between mobile or car phones and traditional phones.

EC Notice No 97/C 372/03 of 9 December 1997, at pt 56. See Commission Decision No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ: single-wrapped items of ice creams designed for immediate consumption and the other ice creams cannot be substituted for each other due to their price; No 2001/354/EC of 20 March 2001, Deutsche Post AG, LawLex200400002639JBJ, regarding the tariff difference between parcel delivery and mail-order services; No 2002/180/EC of 5 December 2001, De Post - La Poste, LawLex200400003031JBJ, regarding the distinction between general post services and "business to business" post services due to pricing; Commission Decision No 2002/405/EC of 20 June 2001, Michelin, LawLex200400002645JBJ, regarding the absence of substitutability between new tyres and retreaded tyres due to their price.

Commission Decision No 89/93/CE of 7 December 1988, Flat glass, LawLex200400002933JBJ, for flat glass; Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ; No 2003/707/EC of 21 May 2003, Deutsche Telekom AG, LawLex200500004521JBJ, distinction between narrowband access services, charged for metered connection, and broadband access services.

For differences equal to or greater than 40%: Commission Decision No 2001/354/EC of 20 March 2001, Deutsche Post AG, LawLex200400002639JBJ, mail-order parcel services; No 2002/405/EC of 20 June 2001, Michelin, LawLex200400002645JBJ, distinction between new tyres and retreaded tyres; Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, LawLex200400003028JBJ, distinction between emergency transport service and patient transport service; Commission Decision No 38/233/EC of 16 July 2003, Wanadoo Interactive, LawLex200600000015JBJ, distinction between high-speed internet access for residential customers and low-speed Internet access; No 2004/33/EC of 27 August 2003, GVG/FS, LawLex200500004540JBJ, plane compared to train for the Basle-Milan route.

Commission Decision No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ: distinction between single-wrapped items of ice creams designed for immediate consumption and the other ice creams.

Commission Decision No 81/969/EC of 7 October 1981, Michelin, LawLex200400002418JBJ, for new replacement tyres for lorries, buses and similar vehicles; No 2002/180/EC of 5 December 2001, De Post - La Poste, LawLex200400003031JBJ, for "business to business" post services.

See Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ, distinguishing the markets for various types of vitamins when they have specific metabolizing functions that make them non-substitutable; Commission Decision No 89/93/EC of 7 December 1988, Flat glass, LawLex200400002933JBJ, mechanical, thermal, optical and decorative properties of flat glass; Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ, defining a single market for organic peroxides due to their technical properties; No 97/181/EC of 18 December 1996, Concerning the conditions imposed on the second operator of GSM radiotelephony services in Spain, LawLex200400002905JBJ, that distinguishes the GSM system from analog cellular radiotelephony given the quality of voice reproduction and a more efficient use of the available spectrum; No 2007/53/EC of 24 March 2004, Microsoft, LawLex200500004763JBJ, identifying a market for media players enabling the streaming of digital files accessible across the Internet from any computer.

Case T-691/14 Servier, Judgment of 12 December 2018,.

Case 6/72 Europemballage Corporation and Continental Can Company v Commission [1973] ECR 215, LawLex200400002771JBJ.

Commission Decision No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ.

Commission Decision No 2000/74/EC of 14 July 1999, Virgin/British Airways, LawLex200400002594JBJ distinguishing the markets for travel agents depending on whether they relate to charter or scheduled flights; No 2002/180/EC of 5 December 2001, De Post - La Poste (not available in English), LawLex200400003031JBJ identifying "business to business" post services as the relevant market since they provide a better reliability in terms of delivery of items and they offer a deposit and delivery service at pre-determined hours that the general service cannot offer; also, No 2004/33/EC of 27 August 2003, GVG/FS, LawLex200500004540JBJ distinguishing markets relating to a same route depending on the modes of transport, in terms of travel time, cost, use and above all quality of the offered transport.

Commission Decision No 76/353/EC of 17 December 1975, Chiquita, LawLex200400002387JBJ, for an undertaking having a very positive reputation thanks to intensive publicity campaigns to launch and publicize its brand, and its ability to provide very large quantities of products of uniform quality.

See regarding banana, Commission Decision No 76/353/EC of 17 December 1975, Chiquita, LawLex200400002387JBJ; Case 27/76 United Brands v Commission [1978] ECR 207, LawLex200400002980JBJ.

Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ.

See Commission Decision No 88/138/EC of 22 December 1987, Eurofix-Bauco v Hilti, LawLex200400002445JBJ.

See Commission Decision No 2002/405/EC of 20 June 2001, Michelin, LawLex200400002645JBJ defining the market for retreaded tyres as a secondary after-sale services market distinct from tyres although it offers a complementary offer from users' viewpoint.

Commission Decision No 97/181/EC of 18 December 1996, Concerning the conditions imposed on the second operator of GSM radiotelephony services in Spain, LawLex200400002905JBJ.

European Competition Law

144. Characteristics of product or service

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

144. Characteristics of product or service

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise