190 / 516
through refilling of the cartridge and / or the use of a compatible car-
tridge, procured from other sources than Xerox, and stated that there
are other competitor undertakings, which act in the same way.
In conclusion, the Board decided that Xerox is not in a dominant
position in the consumable material (or ink/toner cartridges) for Xerox
branded printers market. For that reason, the Board decided not to
initiate an investigation against Xerox.
Evaluation
We understand from the Board’s decision that the Board has in
reality examined whether Xerox is in a dominant position in the sec-
ondary market or not. As a matter of fact, the Board had already deter-
mined in its decision dated 15.08.2008 and numbered 08-33/417-143
that Xerox is not in a dominant position in the primary (printer) mar-
ket. In other words, in this decision, the Board has in reality examined
if Xerox is in a dominant position in the secondary market even if it is
not in a dominant position in the primary market. The below evalua-
tions may be made concerning the said decision:
• All the information reached by the Board during the prelimi-
nary investigation is related to the secondary market;
• The Board did not specifically determine the relevant market.
However, in order to determine whether an undertaking is in a
dominant position, the relevant market shall be specifically
determined. As a matter of fact, in accordance with the relevant
market, the assessment whether an undertaking is in a dominant
position or not may change;
• The Board, in evaluating the dominant position of Xerox, first
examined its position in the secondary market and referred to
the criteria stated in the Commission Report. For the examina-
tion of the primary market, the Board did not make any deter-
mination with regards to the dominant position, however, mere-
ly stated that there are 3-4 undertakings which have more mar-
ket power than Xerox.
The Board has provided, by this decision, a new dimension to the
notion of “dominant position” set forth in the Competition Act. As a
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NEWSLETTER 2012