EU & Competition Annual Report
The challenges of technology
With market dominance by global technology companies, competition analysis in the face of
such size and complexity is providing new challenges
With Competition Law, it is very important
to consider market competition and market
share, says Sönke Lund, a Partner at Monereo
Meyer Marinel-lo Abogados. But while the
legal and traditional metrics for estimating
market share are sales and turnover – which
has provided the framework for competition
analysis – there are now global market players
whose position in the online marketplace
extends far beyond how much product they
sell. New ways of controlling prices and
market access will be important to consider.
“Companies operating in certain markets
through the Internet will need to work out
which is the relevant market and which is the
market share in terms of dominance of the
markets on the grounds of new parameters,”
explains Lund. The actual relevant market
and threshold definition for the players to
identify the competitive constraints, may
create profound implications for antitrust in
the age of sales in Internet.
The tools of these companies are
changing in that they can control the
relevant markets, says Lund, resuming the
example of the latest developments in the
area of e-books in the EU and US: “While
Amazon and certain publishers had agreed
on certain prices, Amazon converting from
a distributor to an agent means that this
change does not exclude the possibility of
controlling prices too.”
Added to which, he says, this is not
only a vast market, but it is a global one
too, incorporating several jurisdictions on a
national, EU and worldwide scale. So while
Sönke Lund
market share and definition of the relevant
market continues to be indispensable
El dominio del mercado
in competition law, it now concerns
por las compañías
developments in market concentration and
tecnológicas mundiales
the de facto power of the market, for instance
está planteando nuevos
by controlling apps.
retos sobre el análisis
“Lawyers need to go in deeper into the
de la competencia,
whole market and practices of their clients,”
comenta Sönke Lund de
concludes Lund. “That’s not to say there
Monereo Meyer Marinel-lo
is anything wrong with them, but there
Abogados. Los abogados
will be instances where market share is not
tienen que adentrarse en
always measurable through money. This is
el conjunto del mercado
something that is essential that competition
y las prácticas de los
lawyers consider – if they haven’t already.”
clientes.
Competitive transport concessions
Portugal’s post-bailout obligations to
open up its state-controlled assets to
private bidders has already seen prize
assets such as ANA – Aeroportos de
Portugal, CTT – Correios de Portugal,
and TAP offered to market. Now,
according to José Luis Esquível,
Managing Partner of Esquível
Advogados, it is the major domestic
passenger transit concessions in
Portugal that are next on the list.
“The main transit services have
been operated by state-run companies
for decades. For example, Carris
runs the buses and trams in Lisbon
while Lisbon Metro operates the
underground, and in Porto, STCP
(Sociedade de Transportes Colectivos
do Porto) runs the bus and trams
with Prometro/Viaporto operating
the surface light railway system,” he
explains. “The plan now is for these
concessions, and a few others, to be
offered to private bidders towards the
end of 2014.”
www.iberianlawyer.com
Portugal now has to develop a
framework so the tenders can be
opened to the private sector and there
will undoubtedly be challenges ahead
because of the potential complexity of
contracts, Esquível says. For instance, the
bus, tram and Metro systems in Lisbon
could be procured under a large, single
contract, which has ramifications for the
risk profile in terms of agreeing the remit
between the private and public sectors
of the operation, services, rolling stock,
tariffs and concession infrastructure.
“There are many questions to address
but, in terms of opening up the market
to competition, these concessions will be
important,” Esquível continues. “All the
necessary competition and regulatory
frameworks are in place for successful
tenders and that the existing transit
systems have a proven client base.”
And the size of these contracts will
enhance competition, he concludes, as
Portuguese and international investors
will likely bid for the deals.
José Luis Esquível
Los compromisos
del Estado portugués
tras el rescate para
abrir sus activos a los
licitadores privados ya
ha sido testigo de varias
empresas participadas por
inversión privada. Ahora,
los siguientes son las
concesiones de transporte
de pasajeros de Portugal,
según José Esquivel de
Esquivel Abogados.
November / December 2013 • IBERIAN LAWYER • 47