CREATe is happy to present the ninth entry in our series of working papers released in 2024: ‘A Renewed Vision of Market Definition’s Importance: Competition Law in the Collective Interest’, by Magali Eben, Senior Lecturer in Competition Law and Deputy Director of the CREATe Centre, University of Glasgow.
This working paper, A Renewed Vision of Market Definition’s Importance: Competition Law in the Collective Interest, offers an updated look at the role of market definition in competition law. It challenges the traditional view that market definition is merely a technical step, suggesting instead that it is foundational for maintaining the legitimacy of competition law by linking its enforcement to the collective interest.
This perspective is especially relevant today as competition authorities increasingly address complex issues affecting wide societal concerns (such as privacy, democracy, labour). The ongoing debate about the boundaries of competition law, and the limits on the competences of competition authorities, is unlikely to die down any time soon. By reflecting on the normative function of market definition, this paper therefore addresses not only the debate about the utility of market definition in competition law, but also the wider question about the dividing line between competition law and other policies.
The paper argues that, by establishing the scope of markets, competition authorities can identify the target of their enforcement activity. They can define the spaces they are intending to protect, ensuring that they use competition law to safeguard the collective interest rather than just individual interests. Market definition not only serves an analytical purpose but a normative one: it is essential for legitimising competition law enforcement.
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The paper compares competition law’s use of relevant markets to the reference to markets in copyright law and trade mark law, as well as in the Digital Markets Act (DMA). Intellectual property law often references the ‘market’, but primarily to protect individual interests, while the DMA targets fairness and contestability without consistently relying on market definition. In contrast, the paper asserts that in competition law, defining markets is essential to distinguish collective harms from individual grievances. Doing so is a way to illustrate the focus of the enforcement activity and avoid “competence creep” into other regulatory domains.
Magali’s working paper builds on her prior scholarship, which reflects on market definition in digital markets and on the value in a ‘purposive’ approach to market definition. This paper takes the next step in responding to calls to abandon market definition, by advocating that market definition could contribute to the substantive legitimacy of competition law enforcement.
Magali invites feedback on this paper: please send her any comments, thoughts, disagreements. There is room for improvement, not only of the paper, but of the debate about market definition in general. She particularly welcomes insight on the use of markets in intellectual property law, as well as views on the role of the collective interest (and its definition) in competition law.
A Renewed Vision of Market Definition’s Importance: Competition Law in the Collective Interest
Magali Eben
CREATe Working Paper 2024/09
Abstract
This working paper presents a renewed vision of the role of market definition in competition law, emphasizing its importance in safeguarding the collective interest. This paper argues that market definition is crucial for ensuring the legitimacy of competition law enforcement. While often brushed aside as a technical or procedural step, this paper contends that market definition has normative value, aligning competition law enforcement with its overarching goal of protecting the collective interest. By drawing a market’s boundaries, authorities can illustrate how their enforcement activities are focused on the collective interest, the public good, and evidence their competence to act and apply competition law (rather than other areas of law or regulation). Furthermore, the paper explores the boundaries between competition law and other legal frameworks, such as intellectual property and consumer protection, to illustrate why market definition remains a distinct and vital tool in competition cases. Through this fresh perspective, the paper intends to address calls to abandon market definition, while contributing to ongoing debates about the scope and purpose of competition law in a rapidly evolving economic and societal landscape.
Full paper can be downloaded here.