COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
A product or service market is defined according to its nature, its conditions of use and its marketing conditions.
– Nature of product or service: the attributes, properties and price, or the conditions of production of a product or service serve to define the relevant market. These characteristics are not assessed in themselves but in relation to the actual behavior of consumers. The fact that the product or service meets a particular need makes it possible to distinguish it from other products or services with identical technical characteristics. The technical nature of a product or service and the investments it requires generally lead the supervisory authorities to identify a distinct market. More subjective characteristics, such as the quality of a product and the reputation due to that quality can also make it unsubstitutable, particularly when it is “decisive if not indispensable” for a distributor wishing to offer a complete range. Likewise, the image of the product can differentiate it from a similar product: this is the case of gift cards compared to gift vouchers, which arrived later on the market and have a more modern image. The taste of a product can also be an element of differentiation. When the price range is progressive, it is impossible to conclude that there is a “high-end” market. Finally, the manufacturing conditions of a product can contribute to the delimitation of a relevant market. This is the case for a cheese with a registered designation of origin or products marketed under a label. More specifically, the competition authorities consider that each lot of a public contract subject to a bidding procedure constitutes a separate market.
– Conditions of use: different conditions of use of the same product or of substitutable products make it possible to identify distinct markets. Thus, the market for draught beer sold in pubs must be distinguished from that for beer sold in packs. Similarly, a distinction must be made at the equipment stage between the market for the supply of energy for heating and the market for the supply of energy for air-conditioning, and at the daily needs stage between the market for gas and the market for electricity.
– Marketing conditions: the specificity of the marketing method may create unsubstitutability of the product in the eyes of users.
