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

In defining the relevant market, the EU authorities refer less to supply-side substitutability which they use as additional assessment factor . According to the Notice on the definition of relevant market, substitutability may be analyzed from the supply-side where it produces effects equivalent to those of demand substitutability in terms of effectiveness and immediacy and where this leads to sim …

Definition of market and elasticity of supply

In defining the relevant market, the EU authorities refer less to supply-side substitutability which they use as additional assessment factor . According to the Notice on the definition of relevant market, substitutability may be analyzed from the supply-side where it produces effects equivalent to those of demand substitutability in terms of effectiveness and immediacy and where this leads to similar conditions for such products .  The analysis of supply-side substitutability in defining the market, often relevant when the undertakings present a whole range of qualities and types for the same product, may give rise to the interpretation that the market includes all demand and supply-side substitutable products, even if for a final consumer or a specific group of final consumers, their differences in quality do not render the products substitutable .

Two products or services must be regarded as substitutable from the supply side where suppliers are able to switch production to the relevant products or services without incurring significant additional costs or risks : where substitution requires significant investments , too much time  or strategic revisions, substitutability will not be found. Technical feasibility is therefore a necessary, but not sufficient, condition for supply-side substitutability .

There is no supply-side substitutability between products where they are manufactured from wholly different raw materials , or where their manufacture requires the use of distinct manufacturing technologies and equipment , different production processes , specific plants  or they require marketing efforts to re-position the products  or the acquisition of specific experience and know-how .

Likewise, difficulties in developing a new customer base , or the marketing of a new product , the concentration of production on one segment  or the significant costs of research and development required by the entry to a declining market, reduce supply substitutability .

By contrast, where it is sufficient to resort to simple conversion processes, supply is substitutable .

See Commission Notice No C/2024/1645 of 8 February 2024 on the definition of the relevant market, pts 32 et seq.

Commission Notice No C/2024/1645 of 8 February 2024, pt 23(b). According to point 37 of the communication, the Commission does not widen the market on the basis of supply substitution “where supply substitution would entail the need to significantly  adjust existing tangible and intangible assets outside the regular  course of business; to incur more than insignificant additional  investments, sunk costs or risks; to take strategic decisions of a  lasting nature, or to incur time delays”.

Commission Decision M.3056 of 11 June 2003, Celanese/Degussa/JV, LawLex200500005340JBJ: butyric aldehyde is separate from iso-butyric aldehyde even if they are produced at the same time and in the same reactor where the modification in production ratio of the one compared to the other would take several months.

Commission Decision M.2187 of 9 October 2001, CVC/Lenzing, LawLex200400002653JBJ: viscose fibers and lyocell fibers belong to separate product markets where switching production between viscose fibers and lyocell fibers would amount to building an entirely new plant as the production process is entirely different and could therefore be only feasible at a significant cost and with considerable delay.

Commission Decision M.3397 of 9 June 2004, Owens-Illinois/Bsn Glasspack, LawLex200500004210JBJ: from the supply side, the market for glass containers is separate from the market for plastic containers or metal cans, given the substantial costs and time delays that would result from adjusting the production equipment, and the marketing efforts required to re-position the product.

Commission Decision M.2396 of 11 May 2001, Industri Kapital/Perstorp (II), LawLex200500004188JBJ.

Commission Decision M.986 of 11 February 1998, Agfa-Gevaert/DuPont, LawLex200500004405JBJ: in the offset printing plates business, positive, negative, CtP and electrostatics printing plates are four separate product markets given the fact that the opportunities for producers actually to switch to another product are low, as it would require high costs to adjust production facilities and to develop a new customer base.

Commission Decision M.2978 of 7 January 2004, Lagardere/Natexis/VUP, LawLex200500005785JBJ: the market for the sale of books to class 1 and class 2 bookshops, on which only marketers can penetrate where they are able to apply the commercial rules specific to that sector, particularly as regards automatic distribution and the sale of new titles, is distinct from the market for sales to hypermarkets which present specific barriers such as expense of product listing and the need to have a strong reputation, and from the market for marketing to wholesalers, where reputation and catalogue constitute barriers to entry.

Commission Decision M.1672 of 14 March 2000, Volvo/Scania, LawLex200500005292JBJ; M.3653 of 13 July 2005, Siemens/VA Tech, LawLex200700002019JBJ: within the overall market for mechanical metal plant building, sub-divisions corresponding to the various production process stages must be distinguished, given a clear differentiation of the supplier structure in special areas, as specialized suppliers are not present in all segments.

Commission Decision M.3091 of 11 July 2003, Konica/Minolta, LawLex200500004202JBJ: the photometer market constitutes a relevant market per se distinct from the market for other light meters, insofar as entry to that market requires significant research and development costs.

Commission Decision M.160 of 28 July 1992, Elf Atochem/Rohm And Haas (not available in English): there is no distinct market corresponding to the various uses of poly methyl methacrylate insofar as the mere addition of additives enables producers to supply them.

Case T-162/10 Niki Luftfahrt, Judgment of 13 May 2015, LawLex201700001313JBJ.

Commission Decision M.3436 of 26 October 2004, Continental/Phoenix, LawLex200700002010JBJ: the car air springs market is a relevant market without it being necessary to distinguish between conventional cars, sports utility vehicles and vans due, inter alia, to the possibility for manufacturers to produce springs for the three types of vehicles, as the process is the same. 

Commission Decision M.5658 of 17 November 2011, Unilever/Sara Lee Body Care, LawLex201700000649JBJ: male deodorants and non-male deodorants are separate relevant product markets insofar, as even if the extension of a well known male/female/unisex deodorant brand into a different gender category in principle would be “possible” for the major deodorants suppliers, such extension would still require a significant time and investment to prepare and launch the product. 

Commission Decision M.053 of 2 October 1991, Aerospatiale- Alenia/de Havilland, LawLex200400002474JBJ: since from the supply side, it would take considerable time, longer than three or four years, for manufacturers of 30-seat aircraft to switch their facilities to produce 50-seat aircraft, regional turbo-prop aircraft belong to an overall market divided in three relevant markets, commuters with 20 to 39 seats, 40 to 59 seats and 60 seats and over; See also M.1313 of 9 March 1999, Danish Crown/Vestjyske Slagterier, LawLex200400002628JBJ; M.1882 of 19 July 2000, Pirelli/BICC, LawLex200500004490JBJ; M.2420 of 30 October 2001, Mitsui/CVRD/Caemi, LawLex200400002681JBJ.

Case C-581/22 P Thyssenkrupp AG, Judgment of 4 October 2024, LawLex202400007566JBJ.

Commission Decision M.6360 of 2 September 2013, Nynas/Shell/Harburg refinery, LawLex201700000659JBJ.

Commission Decision M.081 of 6 June 1991, VIAG/Continental Can, LawLex200400003186JBJ: in the beer and carbonated soft-drink sectors, glass bottles, plastic bottles and metal cans do not fall within the same market, from the supply side, where the raw materials used are different, which leads to use distinct manufacturing technologies and equipment; M.623 of 16 January 1996, Kimberly- Clark/Scott, LawLex200500004382JBJ: with tissue paper products, there is a market for toilet tissue, a market for handkerchief and facial tissues and a market for kitchen towels, which are separate insofar as, in particular, the machines used to convert stock in folded products are product-line specific and generally do not have the ability to switch between say facial tissues and handkerchiefs and such switching would incur significant costs and can entail the loss of considerable output; M.3436 of 26 October 2004, Continental/Phoenix, LawLex200700002010JBJ. See on the contrary, M.646 of 30 October 1995, Repola/Kymmene, LawLex200400003185JBJ: printing paper is a relevant market per se without it being necessary to distinguish depending on its various specific features as to weight, color and other specificities, insofar as printers can use each of those categories without having to make significant adjustments of their machines and rapidly switch from one category to the other in case of price variation; 

European Competition Law

326. Definition of market and elasticity of supply

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326. Definition of market and elasticity of supply

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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