2.4. Current EU Practice

After having described the standard approach towards identifying relevant markets (and assessing dominance) and having pointed out some consequences of trends in theory as well as in business environment, we now turn to the description of the current status quo in European merger policy. This is the last step that needs to be taken before proposals for improvement can be generated in the next subsection.

Broadly speaking, two approaches appear possible in order to delineate current EU practice: The first one consists in looking at official documents such as the Merger Regulation itself, but also at the Commission’s “Notice on the definition of the relevant market for the purposes of Community competition law (97/C 372/03)”. The second approach consists of an analysis of the decision practice as observed during the first decade of the Merger Regulation. The first approach could be called a de jure approach, the second one a de facto approach. As it is the factual decisionmaking of the Commission that is relevant for firms wanting to merge, the second
approach is pursued here.

In the description of the current EU practice, we start out by looking at the product dimension first as this seems to be the most important factor. The general statements concerning EU practice should be read with care: as just explained, we tried to identify EU practice primarily by looking at a large number of decisions. Yet, a single, coherent practice might simply not exist. Examples drawn from specific cases appear at times more as examples of a EU practice and not the EU practice. A number of selected cases will be dealt with in considerable detail in chapter V.