EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

However, using the product specific price elasticity of demand does not eliminate a possibility to consider the markets concerned in other steps of the analysis. Market definition and market shares as a mean for dominant position analysis are preferred also due to alleged legal certainty and simplicity of self-assessment. Other arguments reject a product specific price elasticity of demand with reference to the complexity of collecting the relevant data. Digitalisation affects the applicability of a product specific price elasticity of demand in two directions, addressing the last two sets of argument against its use. First, and this applies to virtually all businesses, sales data for a particular business product are much more available and easier to track than before. Businesses are motivated and forced by digitalisation requirements, sometimes even transposed into legislation, to record data on each individual piece of a product sold, and this data is usually stored centrally, in a single information system. Finding information about the quantity sold at a specific price, even a few years back, should not be a major problem now in most cases. This also applies in cases where the delivered product is a service or an intangible product, for which it is more complicated to quantify the delivered quantity. This data is also usually monitored by companies, which is also related to the ongoing digitalisation. The second aspect, from which digitalisation (but also globalization) impacts applicability and usefulness of a product specific price elasticity of demand, mainly applies in digital economy. Digitalisation complicates the establishment of clear boundaries between products that are (sufficiently) substitutable and those that are not. In other words, the relevant market cannot be simply defined by “common sense” approach, which econometric methods (such as the SSNIP test) would just likely confirm. Interchangeability between some services can only be one-sided and services are often interchangeable only to a certain extent. Although the main impact can be seen within digital economy, the same is also related to the supply of tangible products, which, however, take place online. E-commerce expands geographical boundaries. By way of example (competition law history experts will certainly recognize the similarity to the real case), it is no longer clear whether there is one relevant cellophane market in the US or whether Chinese bubble wrap, which American consumers can order at AliExpress, is interchangeable. These issues did not need to be addressed at all 40 years ago. We can therefore state quite convincingly that digitalisation has significantly complicated the analysis of market power based primarily on the assessment of market shares. Increasing complexity of the assessment is illustrated well by the extent of the assessment of Google’s dominant position in the Commission’s decisions in the Google Search / Shopping case (more than 65 paragraphs) and Google Android (almost 300 paragraphs). At the same time, digitalisation likely

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