EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

p. 12). This is at odds with what we observe from platform-mediated markets, which seem to be constantly subject to change. Dynamic efficiencies are more closely related to that potential of change in technology. Dynamic efficiencies denote the ability of an undertaking and its incentives to introduce new products or processes of production or to improve existing ones (OECD, 2012, p. 14). Dynamic efficiencies display their effects over time and show the best combination of production factors considering how they might be improved (OECD, 2012, p. 14; Costa-Cabral, 2017, p. 8). It seems that dynamic efficiencies, considering a longer time frame and development, are better fit to deal with the changes and uncertainty in platform-mediated markets than static efficiencies. In the next two sections I will show how in European competition law the assessment of market power in abuse of dominance cases and merger control is focused on static efficiencies, which only accommodates innovation to a limited extent. 2.2 Market power and innovation in abuse of dominance cases To determine whether an undertaking has a dominant position in European competition law, the Commission examines the competitive structure of the market, and, in particular, the competitive constraints imposed by actual competition, future entry and exit or potential competition, and countervailing buyer power (Guidelines 102 TFEU, paras 13–24). The existence of a dominant position derives in general from a combination of these factors which, taken separately, would not necessarily be determinative for the assessment of a dominant position ( United Brands , 1978, paras 65–66; Hilti , 1991, para 90; Gøttrup-Klim , 1994, para 47; Telefonica , 2012, para 148). However, from these factors, the actual competition as measured by market shares is highly important in determining that an undertaking has a dominant position ( Hilti , 1991, para 90; Imperial Chemical Industries , 2010, paras 255–256; Telefonica , 2012, para 148). An undertaking holding a market share in excess of 40% will be presumed dominant but additional factors like barriers to entry will have to be observed to conclusively establish dominance (Communication of the Commission on article 82, para 15). Very large market shares of more than 50% “are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position” ( Hoffmann-La Roche , 1979, para 41; Solvay , 2009, para 277; Imperial Chemical , 2010, paras 256 and 259). The Commission and the Court have always nuanced the importance of market shares by clarifying that “a substantial market share as evidence of the existence of a dominant position varies frommarket to market according to the structure of these markets […]” ( Hoffman La Roche , 1979, paras 39–41; AKZO , 1991, para 60; Hilti , 1991, paras 90-92; France Telecom , 2007, para 100). In previous cases on

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