EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
• horizontally affected – if the parties are both active in the same market and hold a com - bined market share of 20% or more; or • vertically affected – if one party is active in a market that is upstream or downstream from a market in which the other is active and in which the parties’ individual or combined market share on either market is 30% or more. In determining whether a concentration gives rise to any affected markets, the Commission considers the market definitions proposed by the notifying parties, as well as any plausible alternative market definitions based on the Com - mission’s or the EU courts’ prior decisional prac - tice, market reports, feedback from competi - tors and customers, or the parties’ own internal documents. The Commission enjoys consider - able discretion in determining the scope of the relevant markets and will often define markets more narrowly than the parties may do internally. The Horizontal Merger Guidelines indicate that competitive concerns are unlikely where the parties hold a combined market share of 25% or less, or have a post-merger Herfindahl- Hirschman Index (HHI) below 1,000 (or, in cer - tain other situations, have a higher HHI but a low delta). In addition to affected markets, the Commission also assesses markets where one of the parties has a market share of 25% or more and another party is a potential competitor in that market, as well as closely related neighbouring markets where the parties’ individual or combined market share on either market is 30% or more. Prod - uct markets are closely related neighbouring markets when the products are complementary to each other or when they belong to a range
of products that is generally purchased by the same set of customers for the same end use. 4.3 Reliance on Case Law The Commission consistently relies on a sub - stantial body of case law built up from its own decisional practice and the judgments of the EU courts. The notifying parties are expected to refer to this record as a point of departure when defining the relevant markets or submitting other arguments. The Commission or the notifying parties may occasionally rely on case law from other juris - dictions, particularly if a transaction relates to markets that the Commission has not previously examined in detail; analysis provided by mem - ber state NCAs may be particularly persuasive. However, with more than 9,000 cases decided over the past 30-plus years, the Commission’s body of decisions is so extensive that reliance on the decisions of other jurisdictions is very rare. 4.4 Competition Concerns The Commission will investigate whether the concentration gives rise to an SIEC (see 4.1 Sub- stantive Test ). In making this determination, the Commission will assess the impact of the trans - action on various parameters of competition, including prices, output, quality and innovation. The Commission’s Horizontal Merger Guidelines and Non-Horizontal Merger Guidelines outline specific theories of harm that the Commission
is likely to consider. Horizontal Concerns
Where the parties to a concentration are active in the same markets, the Commission will typi - cally consider whether an SIEC may arise from:
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