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

To assess the compatibility of the transaction with the internal market, the Commission must take account of the “market position of the undertakings concerned and their economic and financial power” (Regulation No 139/2004, Article 2(1)(b)).
A market share greater than 50%  may in itself be evidence of a dominant position . Thus, a combined market share of between 50 and 60% and the difference be …

Combined market share

To assess the compatibility of the transaction with the internal market, the Commission must take account of the “market position of the undertakings concerned and their economic and financial power” (Regulation No 139/2004, Article 2(1)(b)).

A market share greater than 50%  may in itself be evidence of a dominant position . Thus, a combined market share of between 50 and 60% and the difference between the merged entity and its next competitor in a mature sector where market shares and concentration levels provide a reliable indication of market power, constitute a strong first indication that the proposed transaction will result in non-coordinated effects generated by means of the creation of a dominant position .  A merger which results in controlling more than 90% of an already highly concentrated market , or more than 80% of a market characterized by high barriers to entry , which leads to the acquisition of a monopoly or quasi-monopoly on a mature market , or to the uniting of the only two holders of non-substitutable facilities  is, a fortiori, incompatible with the internal market. Where there is no potential competition on the short term, the transaction which converts the merging undertaking into the only supplier on the market necessarily leads to the creation of a dominant position .

Conversely, a merger that results in the new group holding a market share of less than 25% is presumed to be compatible with the internal market . Furthermore, a merger is not likely to produce any anticompetitive effects where there is no overlapping or adding of market shares . Between 25% and 50%, the risk of impeding competition remains and depends on whether competitive constraints exist on the relevant market .

However, in principle, there is no market share threshold beyond or below which a merger is necessarily found to be compatible or incompatible. According to the Commission, the holding of even a considerable market share by the merged entity on markets of small value does not appropriately reflect its market power . Market shares above 80% on a contestable market or in presence of strong competitive constraints may be admitted where they do not allow the merged entity to act independently of competitors on the market . Likewise, a concentration which confers on the new entity a market share above 50% does not lead to the creation or strengthening of a dominant position where competitors active on that market have significant market shares , there is some degree of substitution between the products concerned , or concentration of supply is high in each Member State . By contrast, the strengthening of a dominant position resulting from the concentration may be harmful to competition  where it is not alleviated by a countervailing buyer power  or by the presence of sufficiently powerful competitors , or where it operates on a market that is mature or characterized by high barriers to entry .

50% and more: see Commission Notice No 2004/C 31/03 of 5 February 2004, Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, at pt 17.

Case T-102/96 Gencor v Commission [1999] ECR II-753, LawLex200500004258JBJ, ECLR 1999, 334-336, obs. FOX; ECLR 1999, 638-652, obs. PORTER ELLIOTT; Case T-221/95 Endemol v Commission [1999] ECR II-1299, LawLex200500004260JBJ; Case T-310/01 Schneider Electric v Commission [2002] ECR II-4071, LawLex200500004267JBJ. See also Commission Decision M.784 of 20 November 1996, Kesko/Tuko, LawLex200500004387JBJ; M.2621 of 8 January 2002, Seb/Moulinex, LawLex200500005378JBJ.

See in particular Commission Decision M.3420 of 16 June 2004, GIMD/Socpresse (not available in English), which finds that the concentration, which confers upon the parties a 35% to 55% market share, in presence of much less powerful competitors in terms of market shares or published newspapers, raises serious doubts regarding its compatibility with the common market; M.3178 of 3 May 2005, Bertelsmann/Springer, LawLex200600001254JBJ, no competitive risk where, after the merger is completed, the new entity will be market leader with market shares of between 45% and 50%, given the capacity of its main three competitors to replace a large part of the sales and the presence of credible potential competitors abroad; M.3653 of 13 July 2005, Siemens/VA Tech, LawLex200700002019JBJ, according to which the concentration granting to the notifying parties a joint market share between 20% and 60% and gathering the strongest direct competitors on a highly concentrated market is liable to significantly impede effective competition; M.3687 of 25 August 2005, Johnson & Johnson/Guidant, LawLex200700000261JBJ, which excludes any impediment of competition where the concentration confers upon an undertaking holding a 40%-50% market share control over a potential competitor, given the existing competitive constraints.

Commission Decision M.6266 of 18 April 2012, Johnson & Johnson/Synthes, LawLex201700000665JBJ, for market shares between 50 and 100% with an increment of less than 1%.

Commission Decision M.068 of 19 July 1991, Tetra Pak/Alfa-Laval, LawLex200400002476JBJ; M.477 of 14 February 1995, Mercedes- Benz/Kässbohrer, LawLex200400002512JBJ.

Commission Decision M.004 of 7 November 1990, Renault/Volvo, LawLex200400003059JBJ; M.2602 of 11 December 2001, Gerling/NCM, LawLex200500004192JBJ.

Commission Decision M.072 of 10 June 1991, Sanofi/Sterling Drug, LawLex200400003196JBJ.

Commission Decision M.468 of 17 February 1995, Siemens/Italtel, LawLex200400002511JBJ.

See in particular Commission Decision CE M.2187 of 9 October 2001, CVC/Lenzing, LawLex200400002653JBJ, for a transaction that enables the new entity to create shortage of supply in order to keep prices high. 

Commission Decision M.043 of 29 May 1991, Magneti Marelli/CEAC (not available in English); M.053 of 2 October 1991, Aerospatiale- Alenia/de Havilland, LawLex200400002474JBJ; M.938 of 15 October 1997, Guinness/Grand Metropolitan, LawLex200500004402JBJ; M.1329 of 4 February 1999, Cockerill-Sambre/Usinor (not available in English); M.1663 of 14 March 2000, Alcan/Alusuisse, LawLex200500004481JBJ.

Commission Decision M.430 of 21 June 1994, Procter & Gamble/VP Schickedanz (II), LawLex200500004379JBJ; M.754 of 23 April 1997, Anglo American Corporation/Lonrho, LawLex200400002560JBJ, no potential competition; M.1069 of 8 July 1998, WorldCom/MCI, LawLex200500004397JBJ, on the new entity's significantly larger size than the nearest competitor, whether in terms of revenue or traffic flow; M.1313 of 9 March 1999, Danish Crown/Vestjyske Slagterier, LawLex200400002628JBJ, no countervailing power of current or potential competitors; M.2220 of 3 July 2003, General Electric/Honeywell, LawLex200400002655JBJ, entity four to five times larger than the second player; M.3225 of 29 September 2003, Alcan/Pechiney (II), LawLex200500004206JBJ, no competitor having sufficient capacities to meet the customers' needs within a short period of time; M.3420 of 16 June 2004, GIMD/Socpresse (not avaiblable in English), much less powerful competitors in terms of market shares or published newspapers.

Commission Decision M.1578 of 1st December 1999, Sanitec/Sphinx, LawLex200400002636JBJ; M.2033 of 24 January 2001, Metso/Svedala, LawLex200400002647JBJ; M.3396 of 28 May 2004, Group 4 Falck/Securicor (4064), LawLex200500004209JBJ.

Commission Decision M.6471 of 7 November 2012, Outokumpu/Inoxum, LawLex201700000656JBJ.

Commission Decision M.190 of 22 July 1992, Nestlé/Perrier, LawLex200500004234JBJ.

Commission Decision M.856 of 14 May 1997, British Telecom/MCI (II), LawLex200400002564JBJ.

Commission Decision M.157 of 5 October 1992, Air France/Sabena (not available in English); M.1671 of 3 May 2000, Dow Chemical/Union Carbide, LawLex200500004482JBJ; M.1813 of 12 July 2000, Industri Kapital (Nordkem/Dyno), LawLex200500004488JBJ; M.2097 of 31 January 2001, SCA/Metsä Tissue, LawLex200400002651JBJ.

Commission Decision M.4318 of 21 September 2006, Veolia/Cleanaway, LawLex200700001878JBJ.

Commission Decision M.2396 of 11 May 2001, Industri Kapital/Perstorp (II), LawLex200500004188JBJ; M.3354 of 26 April 2004, Sanofi-Synthelabo/Aventis (not avaiblable in English).

See Commission Notice 2004/C 31/03, Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, at pt 18. See Commission Decision M.3110 of 11 June 2003, OMV/BP (Southern Germany Package), LawLex200500004201JBJ; Case T-374/00 Verband der freien Rohrwerke and others v Commission [2003] ECR II-2275, LawLex200500004273JBJ.

Commission Decision M.423 of 14 March 1994, Newspaper Publishing, LawLex200400003241JBJ; M.644 of 25 October 1995, Swiss Life/Inca (not available in English); M.1402 of 20 January 1999, Gaz de France/Bewag/Gasag (not available in English); M.4640 of 17 October 2007, BAE Systems/VT/JV, LawLex200800000311JBJ; Case T-374/00 Verband der freien Rohrwerke and others v Commission [2003] ECR II-2275, LawLex200500004273JBJ.

European Competition Law

336. Combined market share

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336. Combined market share

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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