Airtours
Slutet för begreppet kollektiv dominerande ställning?
Both the Commission and the Community Courts have on several occasions stated that a concentration that will cause the creation or strengthening of an oligopoly under certain circumstances might cause what?s referred to as a collective dominant position in the market. The concept of collective dominant position has gained a lot of criticism for being poorly defined and thereby create an uncertainty. The Commissions approach when applying the concept has also gained criticism for its lack of consistency. As a consequence of the Court of First Instances (CFI) decision in the case Airtours v. the European Commission, 3 in whish the Commissions standard of proof were rejected by the CFI, the merger regulation have been revised by the Commission. The expected consequences of the revised merger regulation and its future application have been that the Commission will leave the criteria of dominance in favour of a criterion of anti-competitive effects when evaluating proposed concentrations. An analysis of the new merger regulation and the published guidelines, as well as recent decisions from the Commission based on the new regulation, show no major change in the Commissions approach. The Commission will continue to use the concept of dominance as the base for the decisions. The only change in approach seems to concern the concept of collective dominant position where the Commission apparently has made a move towards an anticompetitive effects criterion in the assessment of concentrations. The Commission appears to deliberately avoid using the term collective dominant position in favour of a concept of ?anti-competitive effects of a concentration resulting from the non-coordinated behavior of undertakings which would not have a dominant position on the market concerned?.4 It definitely seems like we have seen the end of the concept of collective dominant position.