Market Test Discussion

Market Test: Information and further discussion

The undertakings offering commitments should be informed of the results of the market test. This can either be done orally or in writing. The identity of third parties may not be disclosed to ensure that they are not subject to retaliation.

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In addition, after receipt of the replies to the market test, a State of Play meeting should be organised with the parties.

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The obligation to carry out a market test should not be misunderstood as requiring the approval of the market for the commitments. The market test is not an opinion poll which determines the fate of the remedies. The Commission can take a commitment decision even in cases in which participants in the market test requested to reject the commitment offer. On the other hand, the market test often provides the Commission with useful indications on how the commitments could be improved.

Other Considerations

Depending on the case, significant or less significant modifications may become necessary to the proposed commitment text after the market test. These changes should be discussed with the parties. Smaller (“technical”) changes to the commitment text do not require new procedural steps. In particular, no new market test is usually required in case of revised commitments, unless the revision of the commitments is substantial. A change is only substantial if the very nature or scope of the commitments changes. If, for instance, the parties originally offered to reduce the duration of non-compete obligations in contracts with third parties from 5 to 2 years and following the market test such duration is further reduced to 1 year, there is no need to repeat the market test.

Resources

See Also

References

• Information about Market Test Discussion in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

• Information about Market Test Discussion in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)