Translation of "Competitive constraint " (English → French) :

However, under certain circumstances, concentrations involving the elimination of important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, may, even in the absence of a likelihood of coordination between the members of the oligopoly, result in a significant impediment to effective competition.

The new standard makes it clear that all mergers likely to have a significant adverse impact on competition should be prohibited, irrespective of whether the anti-competitive effects result from the creation or strengthening of a single dominant market player or of whether the effects stem from a situation of oligopoly. The new guidelines complement this by explaining that mergers may result in harm to competition either because the concentration eliminates a competitor from the market, thereby removing an important competitive constraint, or because it makes co-ordination between the remaining firms more likely.

Clearly, if evidence exist to show that in the past a firm has engaged in anti-competitive behaviour (price-fixing) or has enjoyed market power, then this may serve as an indication that its prices are not under competitive constraint and accordingly are set above the competitive level.

72. As the Court has stressed, a finding of a dominant position does not preclude some competition in the market. It only enables the undertaking that enjoys such a position, if not to determine, at least to have an appreciable effect on the conditions under which that competition will develop, and in any case to act in disregard of any such competitive constraint so long as such conduct does not operate to its detriment(74).

They are able to carry on sufficient competition constraints on the merging companies. The demand side, namely manufacturers of track vehicles, imposes further constraints on brake suppliers.

Moreover, constraints on its pricing due both to other large and established players on the market and to other competitive constraints, ensure that Otto Versand would not have a dominant position.