The Development of the Concept of Collective Dominance in the ECMR. From its Inception to its Current Status

Abstract

This article analyses how the concept of collective dominance is applied in the case law of the European Control Merger Regulation and how the assessment criteria have been developed through this case law precedence. In spite of the extensive development of the notion of collective dominance accompanied by the improvement of the checklist of the criteria on which the European Commission founds its assessment of collective dominance, legal uncertainty still remains. The CFI judgment in the Airtours case constitutes a clear indication that legal uncertainty is not likely to fade. In the aftermath of Airtours, reforms were adopted that included the adoption of the SIEC test as a more efficient tool in assessing collective mergers. The Airtours judgment outlined three criteria for the assessment of collective dominance, namely transparency, retaliation and countervailing power by customers and competitors. The IMPALA judgment, the first annulment of a clearance decision, implies a lower threshold for collective dominance than the Airtours judgment set. This article will present an extensive account of the development of the concept of collective dominance under the ECMR. It will assess the factors that make a market conducive to collective dominance and determine the criteria that need to be applied by authorities in the assessment of mergers leading to collective dominance.