THE ROLE OF THE EUROPEAN COMMISSION AND THE COURT OF JUSTICE OF THE EURPEAN UNION IN FORMING THE CONCEPT OF COLLECTIVE DOMINANCE

Abstract

Antitrust regulation ensures fair competition, which can be undermined by private business entities in the form of distorted conditions of competition through the abuse of dominance. The material content of competition rules in the European Union, which were formulated in the Treaty establishing the European Economic Community, remained unchanged in the current Lisbon Treaty on the functioning of the EU. However, the array of legal instruments has undergone fundamental changes throughout the entire existence of the European Community, and subsequently the European Union, due to the transformation of law enforcement practice. In connection with the strengthening of the processes of digitalization, globalization, trade liberalization and the opening of national markets, ensuring fair competition in a market economy becomes a priority task not only for domestic, but also for international legal regulation. In this context, the role of the European Commission is increasing not only as a law enforcement body under Article 102 of the Treaty on the Functioning of the European Union (the TFEU), but as the institution capable of determining the further direction of development of legal regulation of market dominance within the EU, applying its own approaches to the concept of dominance. The European Commission, as the main enforcement agency in the field of competition, has significantly developed the concept of dominance and consolidated the regulations under Article 102 of the TFEU in the corresponding document – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. The European Commission and the Court of Justice of the European Union have significantly developed the practice of applying and interpreting Article 102 TFEU. This is due to the fact that Article 102 of the TFEU includes an inexhaustible list of examples of abuse of a monopoly (dominant) position, thus providing a certain discretion to the Commission in the application of Article 102 of the TFEU, and the Court of Justice of the EU in its interpretation. The concept of collective dominance has been developed within the TFEU related cases and in the Council Merger Regulation (EC) No 139/2004 . A cornerstone in the further development of this concept is the criteria established in the Airtours / First Choice case.