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

Although the Court of Justice considers that the position held by an undertaking on the market only constitutes, in theory, a “factor”  of the dominant position, it judges that “among these factors a highly important one is the existence of very large market shares” . Once the market share of an undertaking reaches a certain level, it can suffice as an indicator of a dominant position. Thus, accor …

Market share

Although the Court of Justice considers that the position held by an undertaking on the market only constitutes, in theory, a “factor”  of the dominant position, it judges that “among these factors a highly important one is the existence of very large market shares” . Once the market share of an undertaking reaches a certain level, it can suffice as an indicator of a dominant position. Thus, according to the General Court, even if the relevant market is characterized by short innovation cycles, these are not exceptional circumstances that would prevent a market share of around 60% from being considered, in itself, evidence of the existence of a dominant position .

By contrast, possession of a limited market share is interpreted as meaning that there is no dominant position . Between these two extremes, market share is only considered a relative factor of dominance that needs to be supported by other factors . A market share greater than 50% for several years is generally sufficient for a finding of dominance . The same goes for a market share between 40% and 45% if supported by other factors . According to the Commission, dominance is not likely if an undertaking's market share is below 40% .

Where an undertaking is in a situation of monopoly, whether in law or in fact, the EU authorities seem to be satisfied with this fact alone to find the existence of a dominant position . Therefore, the operator with a statutory monopoly is in a dominant position . Such is the case in particular when national laws provide for a contiguous series of monopolies territorially limited but together covering the entire territory of a Member State . The solution is the same where undertakings hold a monopoly in fact . Holding a market share of 100%  or being the only undertaking on the market that offers a particular product or a service  is sufficient to give the undertaking in question a dominant position.

The concept of dominance is not limited to monopoly but extends to assumptions of quasi-monopolies. Except in exceptional cases, extremely high market shares constitute in themselves evidence of a dominant position . Such is the case where the undertaking in question holds a market share of 91.8% , or 90% and has exclusivity or quasi-exclusivity for all major customers , or market shares of 85% and exercises an influence on certain other producers, who follow an identical sales policy towards dealers . Holding a market share of some 70% is in itself indicative of a significant degree of market power even though this is only one of the indicators of a dominant position .

Dominance is assessed taking into account not only their existence but also the position of competing producers . The greater the disproportion between the position of the undertaking in question and its competitors, the longer their reaction time and the more limited their possibility of meeting demand will be. Thus, an undertaking possessing a market share higher than 90% whereas its direct competitor has a market share of 5% to 10% is in a dominant position . Likewise, an undertaking that controls between 85% and 90% of the relevant markets, while other competitors only represent a marginal share, holds an individual dominant position even though it has suffered some losses . For intermediary market shares between 30% and 80%, the relative disproportion in market share between the undertaking in question and its competitors is a decisive factor in determining a dominant position . An undertaking holding a market share of 45%, much greater than that of its competitors despite a slight decrease and that conducts a big marketing campaign for the launch and distribution of its brand, is in a dominant position . An undertaking with a market share of 50% in each Member State is in a dominant position in the Union since there is a significant gap between its market share and that of its four competitors and the market includes many barriers to entry . The same goes for an undertaking with between 57% to 65% of the relevant market while its main competitors only hold 4% to 8% despite for a time having had zero profitability and having recorded losses . Finally, an undertaking is in a dominant position if it controls 45% of the relevant market where it represents a market share several times greater than that of its main competitor  or 39.7 % of a market while its main competitor only holds 5.5% .

Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ.

An undertaking having statutory exclusivity on conformity inspections for a given brand of vehicles under conditions unilaterally set by it is in a dominant position: Commission Decision No 75/75/EEC of 19 December 1974, General Motors Continental, LawLex200400002889JBJ; Case 26/75/EEC General Motors v Commission [1975] ECR 1367, LawLex200400002774JBJ; Case 226/84 British Leyland v Commission [1986] ECR 3263, LawLex200400002950JBJ; For a statutory monopoly for the running of telecommunication systems: Commission Decision No 82/861/EEC of 10 December 1982, British Telecommunications, LawLex200400002961JBJ; No 97/181/EC of 18 December 1996, Concerning the conditions imposed on the second operator of GSM radiotelephony services in Spain, LawLex200400002905JBJ; For the monopoly for the running of an airport: Commission Decision No 95/364/EC of 28 June 1995, Proceeding pursuant to Article 90 (3) of the Treaty, LawLex200400002504JBJ, No 1999/199/EC of 10 February 1999, Portuguese airports, LawLex200400002956JBJ, Case T-128/98 Aéroports de Paris v Commission [2000] ECR II-3929, LawLex200400002977JBJ; Case C-82/01 P Aéroports de Paris v Commission [2002] ECR I-9297, LawLex200400003034JBJ; For the provision of rail transport services: Commission Decision No 94/210/EC of 29 March 1994, HOV SVZ/MCN, LawLex200400002666JBJ; No 2004/33/EC of 27 August 2003, GVG/FS, LawLex200500004540JBJ; For the monopoly in the collection, carry and delivery of letter post: Case C-340/99 TNT Traco [2001] ECR I-4109, LawLex200400003025JBJ; Commission Decision No 2001/892/EC of 25 July 2001, Deutsche Post AG — Interception of cross-border mail, LawLex200400003568JBJ; No 2002/180/EC of 5 December 2001, De Post - La Poste, LawLex200400003031JBJ.

Case C-323/93 Centre d'insémination de la Crespelle v Coopérative de la Mayenne [1994] ECR I-5077, LawLex200400002883JBJ.

See in particular, Commission Decision No 72/457/EC of 14 December 1972, ZOJA/CSC - ICI (not available in English); Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ, which retains the dominant position of an undertaking holding a worldwide monopoly in the production and sale of a raw material for the manufacture of a derivative.

Case T-139/98 AAMS v Commission [2001] ECR II-3413 LawLex200400003030JBJ.

Commission Decision No 98-538 of 17 June 1998, LawLex200400002935JBJ; Commission Decision No 2000-12 of 20 July 1999, not available in English; Case C-163-99 République portugaise, Judgment of 29 March 2001, LawLex200400003024JBJ. Case C-333/21 European Superleague Company SL, Judgment of 21 December 2023, LawLex202400004511JBJ: both FIFA and UEFA hold a dominant position on the market for the organization and marketing of interclub soccer competitions on EU territory, as well as for the exploitation of the various rights associated with these competitions, since they are the only associations that organize and market such competitions on a global and European scale, unlike the situation that prevails with regard to other sporting disciplines.

Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ; Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, LawLex200400002887JBJ; Commission Decision No 2001/463/EC of 20 April 2001, Der Grüne Punkt - Duales System Deutschland (AG), LawLex200400002640JBJ; No 2001/892/EC of 25 July 2001, Deutsche Post AG — Interception of cross-border mail, LawLex200400003568JBJ.

Commission Decision No 88/501/EEC of 26 July 1988, Tetra Pak I (BTG licence), LawLex200400002944JBJ.

Commission Decisions No 91/300/EEC of 19 December 1990, Soda-ash - ICI, LawLex200400002920JBJ and No 2003/7/EC of 13 December 2000, Soda-ash - ICI, LawLex200500004014JBJ.

Commission Decision No 73/109/EC of 2 January 1973, European sugar industry, LawLex200400002383JBJ.

Commission Decisions No 2003/6/EC of 13 December 2000, Soda ash - Solvay, LawLex200500003893JBJ; No 2007/53/EC of 24 March 2004, Microsoft, LawLex200500004014JBJ; See, however, Commission Decision No 38/233/EC of 16 July 2003, Wanadoo Interactive, LawLex200600000015JBJ: the Commission asserts that the fact that an operator holds a market share of more than 50-60% is only an indication of a dominant position where the market is emerging although well beyond the stage of simple commercial or technical experimentation.

Case 40/70 Sirena v Eda [1971] ECR 69, LawLex200400002879JBJ; Case 78/70 Deutsche Grammophon v Metro SB [1971] ECR 487, LawLex200400002881JBJ.

Commission Decisions No 92/163/EC of 24 July 1991, Tetra Pak II, LawLex200400002911JBJ; No 2001/354/EC of 20 March 2001, Deutsche Post AG, LawLex200400002639JBJ: an undertaking, only provider of a service on the whole national territory and controlling 85% of the relevant market, whereas its regional-wide competitors hold only 10 to 15%, is in a dominant position; See also Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, LawLex200400003524JBJ.

Commission Decision No 97/624/EC of 14 May 1997, Irish Sugar plc, LawLex200400002528JBJ.

Commission Decisions No 88/589/EC of 4 November 1988, London European - Sabena, LawLex200400002939JBJ, that indicates that although the holding by an undertaking of a 45% market share does not automatically entail alone control of the market, it is necessary to assess the degree of control in relation to the strength and number of competitors, whilst the ratio of market shares held by the undertaking concerned to those held by its competitors is also a reliable indicator; No 93/82/EEC of 23 December 1992, Cewal, Cowac and Ukwal, LawLex200400003334JBJ; No 2007/53/EC of 24 March 2004, Microsoft, LawLex200500004763JBJ: for a market share of at least 60%, the market shares of other operators being between 5 and 25%.

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

Commission Decision No 93/252/EC of 10 November 1992, Warner-Lambert/Gillette-BIC/Gillette, LawLex200400002903JBJ; See also, No 88/518/EC of 18 July 1988, Napier Brown/British Sugar, LawLex200400002945JBJ: the main competitors' inability to compete effectively characterizes the dominant position of an undertaking controlling an intermediary market share.

Case 322/81 Michelin v Commission [1983] ECR 3461, LawLex200400002959JBJ.

Case 27/76 United Brands v Commission [1978] ECR 207, LawLex200400002980JBJ.

Commission Decision No 2000/74/EC of 14 July 1999, Virgin/British Airways, LawLex200400002594JBJ; Case T-219/99 British Airways v Commission [2003] ECR II-5917, LawLex200500004555JBJ.

Case T-671/19 Qualcomm, Judgment of 18 September 2024, LawLex202400006537JBJ, adding that an undertaking which, during the period in question, faces only scattered competitors with a much weaker position and relatively unstable market shares, unlike itself, holds significant and lasting market power, which makes it unlikely that its competitors will be able to exert any real constraint on it.

Except in specific circumstances, holding a market share of between 5% and 10% excludes the existence of a dominant position on a market of highly technical but easily interchangeable products in the opinion of the great majority of purchasers: Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ.

Indeed, the dominant position “does not preclude some competition, which it does where there is a monopoly or a quasi-monopoly": Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ. - According to the Court "an undertaking does not have to have eliminated all opportunity for competition in order to be in a dominant position” and the fact that “there was […] a very lively competitive struggle” is not sufficient to assume the absence of dominance: Case 27/76 United Brands v Commission [1978] ECR 207, LawLex200400002980JBJ, paras 113 and 114.

Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, LawLex200400002971JBJ: “An undertaking which has a very large market share and holds it for some time, by means of the volume of production and the scale of the supply which it stands for (…) is by virtue of that share in a position of strength”; Commission Decisions No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ; No 2002/405/EC of 20 June 2001, Michelin, LawLex200400002645JBJ; Cases T-191/98, T-212/98, T-214/98 Atlantic Container Line and others v Commission [2003] ECR II-3275, LawLex200500004554JBJ. By contrast, on an emerging market, the fact that an operator holds a market share higher than 50%-60% is only an indication of dominance: Commission Decision No 38/233/EC of 16 July 2003, Wanadoo Interactive, LawLex200600000015JBJ.

Case C-62/86 AKZO Chemie BV v Commission [1991] ECR II-3359, LawLex200400002915JBJ; Commission Decision No 1999/243/EC of 16 September 1998, Trans-Atlantic Conference Agreement, LawLex200400002949JBJ.

Communication from the Commission EC No 2009/C 45/02 - Guidance on the Commission's enforcement priorities in applying Article 82 EC to abusive exclusionary conduct by dominant undertakings, OJ C 45, 24.2.2009, No 14.

Commission Decision No 84/379/EEC of 2 July 1984, British Leyland, LawLex200400002955JBJ; Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689, LawLex200400002924JBJ.

European Competition Law

149. Market share

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149. Market share

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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