Market Test Form

Form of the Market Test

The Commission is obliged to publish a concise summary of the case and the main content of the commitment proposal and give third parties a chance to submit their observations before it can adopt an Article 9 decision. 1 This is the so-called “market test.”

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To this end a “market test notice” needs to be published in the Official Journal containing a concise summary of the case (suspected behaviour and suspected infringement of competition law) and the main content of the commitment proposal, respecting the obligations of professional secrecy 2 . The summary should allow third parties to understand the essential elements of the commitments and how they are intended to meet the competition concerns identified by the Commission.

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The market test notice usually invites interested third parties to “submit their observations” on the proposed commitments. The case team is, however, free to add specific questions should it wish to verify certain contentious issues.

Other Considerations

The full text of the commitment proposal in its non-confidential version is to be published on the website of DG Competition. The undertaking submitting the commitment should be encouraged to also provide DG Competition with a translation of the full text of the commitments in English – otherwise it is published only in the authentic language. If provided in a timely manner, such translation will, for convenience, be published together with the version in the authentic language 3 .

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In order to enhance transparency of the process and to inform third parties of the market test, the Commission will usually also publish a press release, announcing the market test and setting out the key issues of the case and the proposed commitments.

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If the case is based on a complaint, the market test should be sent to the complainant. The Commission is also entitled to send the publication in the OJ directly to other interested third parties known to be potentially concerned by the outcome of the case (e.g. third parties admitted to the procedure, consumer associations etc.) and explicitly asking for their comments. This ensures full involvement of those undertakings most concerned.

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The case team might also decide to discuss the draft commitments orally with market participants (if appropriate also in triangular meetings). This may be done to clarify certain answers. In such a case the respondents should either be asked to summarise their comments in written form, or the case team should draft minutes which it can then send for approval 4 .

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In the market test the Commission needs to invite interested third parties to submit their observations within a fixed time-limit which may not be less than one month. 5

Resources

See Also

References

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

Notes

[Note 1] Article 27 (4) of Council Regulation 1/2003.
[Note 2] Article 28 of Regulation 1/2003.
[Note 3] In case of differences between the text in the authentic language and the translation, the version in the authentic language prevails.
[Note 4] If the companies do not return the signed version of the minutes, the case-team should make a note to the file explaining why (e.g. the company does not want to leave any traces in the market test for fear of retaliation).
[Note 5] Article 27(4) of Regulation 1/2003.

Further Reading

• Information about Market Test Form in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)