The Antitrust Market Does Not Exist: Pursuit of Objectivity in a Purposive Process

Magali Eben

doi:10.1093/joclec/nhab001

Abstract

ABSTRACT There is no such thing as an ‘antitrust market’. Markets are merely analytical tools, which serve to structure available evidence and enable a comprehensive answer to a particular question. They do not exist as such in the real world but are figments of our intellectual imagination. In that capacity, they can be immensely useful. A pursuit of objectivity in the process of product market definition remains in vain as long as we fail to acknowledge that the utility of antitrust markets lies precisely in their reductive and purposive nature. This article makes two main arguments. The first argument is simple, yet far-reaching: antitrust market definition is useful because it is a method to enable the answer to a question. The implication is that the market is defined by reference to that particular question, rather than as an independent and neutral object. Market definition is ‘purposive’. In the context of competition investigations, this question can concern, but does not have to be limited to, determinations of market power. The second argument is that market definition, even though purposive, does not need to be subjective. Objectivity in market definition can be achieved by aspiring to process objectivity, rather than to objective outcomes. JEL codes: K21; L40; A00

Highlights

Product market definition is both the most controversial and most ubiquitous concept in competition law
Scholarship, yet the meaning and purpose of the concept seems little clarified.[7]. This part of the article sets out three key characteristics of markets in general, before expanding on this in the context of competition law enquiries in the part of this article
The purposive approach stretches beyond the focus on market power, because it allows for the direction of the market definition towards any question the analysis aims to answer, so that it might include factors which may affect the conduct of an undertaking on a market, even if it does not obviously affect its market power at that time

Summary

Introduction

Product market definition is both the most controversial and most ubiquitous concept in competition law. Though prominent scholars have railed against it,[1]. This article intends to make two main arguments. The first argument is simple, yet far-reaching: the antitrust market does not exist, and that is a good thing. The utility of antitrust markets lies exactly in the fact that antitrust markets are not ‘natural’ phenomena, but intellectual fictions. Antitrust market definition is useful because it is a method to enable the answer to a question. The important implication of this argument is that the market is defined by reference to that particular question, rather than as an independent and neutral object. In the context of competition investigations, this question can concern, but does not have to be limited to, determinations of market power

Objectives

Results

Conclusion