International Antitrust Law & Policy: Fordham Corporate Law 2001 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2001 - PDF
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Chapter 13
COLLECTIVE DOMINANCE AND THE EC
MERGER REGULATION
Frederic Jenny†
I would like to address the issue of collective dominance under the EC
Merger Regulation.
I. DOMINANCE AND COLLECTIVE DOMINANCE
From the legal standpoint it would seem that the definition of economic
dominance under the EC Merger regulation should be consistent with the
definition used when applying Article 82 and should be based on the same
principles as those used to define single firm dominance.
In the Hoffmann Laroche case, the Court said:
The dominant position (. . .) relates to a position of economic
strength enjoyed by an undertaking which enables it to prevent
effective competition being maintained on the relevant market by
affording it the power to behave to an appreciable extent independently
of its competitors, its customers and ultimately of the consumers.
Such a position does not preclude some competition which it does
where there is a monopoly or quasi-monopoly but enables the
undertaking which profits by it, if not to determine, at least to have an
appreciable influence on the conditions under which that competition
will develop, and in any case to act largely in disregard of it so long as
such conduct does not operate to its detriment.1
Thus, the crucial characteristic of market dominance is the ability of the
firm to behave to an appreciable extent independently of its competitors, its
customers and ultimately the consumers.
The first question to ask is what does this criterion mean in the context of
joint or collective dominance?
As John Temple Lang states,2 it is now clear that from a legal standpoint
firms holding a collective dominant position need not be linked by a
Professor, ESSEC; Vice Chairman, Conseil de la concurrence, Paris.
