Art 102 proceedings require concomitance: the incriminated undertaking must be deemed dominant at the time of the abuse. As a high market share is a necessary (but not sufficient) condition for establishing dominance, enforcers have had to define narrow (molecular level) markets in a number of recent cases involving the pharmaceutical industry. However, a narrow delineation was not supported by evidence pointing to intense non-price competition between similar drugs. This paper argues that defining relevant markets conditional on the nature of the infringement offers a cogent framework to establish market boundaries. Such an approach can also lead to narrow markets, without having to ignore evidence pertaining to non-price competition.
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