§3.4 Gathering and evaluating evidence

76. The Commission uses various sources of information and types of evidence to define the relevant market and it may rely on both qualitative and quantitative information. Certain types of evidence may be decisive in one case, but of limited or no importance in other cases involving a different industry, a different product or different circumstances. In most cases and in particular where a detailed assessment is required, the Commission bases its decisions on the consideration of a number of factors, as set out in Sections 3.2 and 3.3, and different sources. The Commission adopts an open approach to empirical evidence, aimed at making effective use of all available information which may be relevant in individual cases, and makes an overall assessment based on that evidence (103). The Commission does not apply a rigid hierarchy of different sources of information or types of evidence (104). 77. Evidence used by the Commission to define markets should be reliable (105). This is likely to be the case, for instance, when the evidence comes from public authorities or is supported by multiple sources, including by market participants with conflicting interests, such as suppliers and their direct customers. In addition, to the extent possible, the Commission uses recent evidence in relation to the period under investigation, in particular when assessing markets in an industry undergoing change. Where the case calls for a forward-looking assessment and when market definition is based on changes in competitive dynamics within the time period considered, such changes must be supported by reliable evidence showing with a sufficient level of likelihood that the expected changes will indeed materialise. When conducting such forward-looking assessments, some categories or sources of evidence may be less reliable or even unavailable. For instance, evidence of past substitution may not be available when assessing new products under development. By contrast, internal documents of market participants produced in the ordinary course of business or independent industry reports including robust projections may be particularly relevant for the purposes of conducting a forward-looking assessment. 78. Evidence carries a higher probative value if it can be established that the evidence could not have been influenced by the Commission’s investigation, such as evidence pre-dating discussions of a concentration or conduct and pre-dating the Commission’s investigation. When faced with contradictory evidence, the Commission tests the relevant statements or data when necessary, for example by checking whether independent and reliable sources are available. If independent and reliable sources are not available, the Commission assesses which evidence carries a higher probative value, taking into account the sources of the information, as well as the context of how and when the information was generated or provided to the Commission. 79. Where appropriate, as well as relying on submissions by the undertaking(s) involved, the Commission gathers evidence by addressing written requests for information to market participants, including the undertakings involved, or by interviewing them. In that context, the Commission seeks to obtain, primarily from the main competitors and customers in the industry, factual evidence and their views of the boundaries of the product and geographic markets. Requests for information may give rise to fines should answers provided be misleading or incorrect, which contributes to ensuring that accurate information is provided. The Commission may also contact relevant trade or customer associations, undertakings active in upstream or related markets, and other key stakeholders, including local, national or international government authorities and agencies or non-governmental organisations. 80. In order to define the relevant market, the Commission may also request internal documents from relevant entities, including in particular the undertaking(s) involved. Internal documents are particularly relevant where these have been prepared in the ordinary course of business, as opposed to documents prepared in view of or during the Commission’s investigation, as they may better reflect how these undertakings view the market. This may include marketing studies that undertakings have commissioned in the past to inform decisions about, for example, the pricing of their products or marketing actions. Customer surveys on usage patterns and attitudes, data on customer purchasing patterns, the views expressed by suppliers and market research studies submitted by the undertaking(s) involved and their competitors may be taken into account to establish whether an economically significant proportion of customers considers two products as substitutable. Evidence showing that an undertaking monitors the behaviour of certain competitors, or strategic documents relied on by the undertaking to inform business decisions, such as business plans or assessments of strengths, weaknesses, opportunities or threats, may also indicate the strength of competitive constraints exercised by various rival undertakings (106). Factors relating to the context of individual documents should be taken into account to assess their relevance. These include the documents’ date, the identity of authors and potential addressees (such as their function, expertise and/or seniority), and the purpose of the documents. 81. In some cases, ad hoc surveys conducted for the purpose of the investigation and covering a representative sample of customers or suppliers can provide useful information on the relevant market (107). The Commission may decide to conduct or commission a survey in a particular case depending on the issue at hand and the evidence available from other sources, and taking into account administrative constraints, such as the timeframe of the investigation. Surveys must be designed carefully in order to elicit meaningful replies from the population of interest (108). 82. The Commission may also rely on public information, market or industry reports, financial analyst reports, as well as market statistics or economic studies, including by external consultants (109). In cases involving regulated markets, including, for instance, the telecommunications, energy or healthcare sectors, the Commission may also seek data from and the views of sector-specific regulators. 83. Where appropriate, the Commission may also carry out informal visits or formal inspections at the premises of the undertaking(s) involved, their customers or their competitors, in order to better understand how products are manufactured or supplied.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07