The Emancipation of Antitrust from Market-Share-Based Approaches

Abstract

The conventional method in determining the market position of undertakings—defining the relevant market, ascertaining the market shares, “qualitative” analysis—has had to face more and more competition in the past decades. For some issues, there exist more suitable methods of analysis today than the antiquated market-share approach. In an age in which product differentiation represents the norm, approaches that base an analysis of competition on market shares can seem more and more to be behind the times. In its assessment of mergers between manufacturers of differentiated products, the European Commission has made a remarkably clean break with the outmoded market-share-based analysis. For such a modernization of competition law application, the general framework of European law offers better conditions than the American system. The European Commission has a freer choice of methods than its American counterparts, the antitrust agencies, because the Commission itself—without invoking a court—is competent to issue decisions, while those addressed can have the Commission’s prohibition decisions reviewed by a court. Also, the courts of the European Union, when they have been involved in merger cases, have themselves contributed to modernizing the decision-making practice.