Only a limited number of transactions can proceed without at least a basic assessment of whether notification to a competition authority is necessary, whether it be the National Competition Authority (NCA) or the European Commission.

Given that the NCA has imposed several fines worth millions of crowns each year for mergers that have taken place without prior notification to the NCA, it is a good idea to become familiar with the new rules on definition of relevant markets as a basis for any notification. This definition is also relevant when assessing the legal nature of anticompetitive agreements or abuse of a dominant position.

The European Commission has recently undertaken the first ever revision of the 1997 Notice on relevant markets, in particular with respect to advanced digitalisation, technological development, socio-economic changes or the latest case law of the European Union Courts (the "Notice").

The Notice still applies to all areas of economic activities. In a few specific areas, such as R&D or multisided online platforms, additional factors must be considered. These include the number of visits to a specific platform, the time spent there, the number of downloads of a particular platform or products offered there, the number of interactions or the value of transactions made through a specific platform. What is a multisided online platform? To put it simply, it is a "marketplace" bringing together different groups of customers who need each other, and the platform allows them to interact. Typical examples are Google, Uber or Amazon.

What other news does the revised Notice bring?

When defining relevant markets, more emphasis will be placed on non-price criteria such as innovation or reliability of supply, quality of products or services, sustainability, ability to integrate a particular product to other products, level of security and privacy, availability or shipping costs and others. Whether a relevant market is about to undergo or has undergone structural changes, i.e. whether it faces any regulatory or technological change, will also play a role. The Notice provides guidance on how to define the relevant market in the case of digital services or products and specifies criteria when a relevant market can be considered "global", how to determine market shares and how to consider product and service prices, customer preferences, barriers to entry and other factors. The Notice clarifies the legal rules for assessing relevant markets where products and services are provided free of charge (so-called zero-price markets).

What remains unchanged is the overall concept of assessing a relevant market. It will always be necessary to assess both a relevant product market and a relevant geographical market.

Author: Vladěna Svobodová