Collective dominance and oligopolies
Produced in partnership with Herbert Smith Freehills

The following Competition practice note produced in partnership with Herbert Smith Freehills provides comprehensive and up to date legal information covering:

  • Collective dominance and oligopolies
  • Collective dominance and Article 102 TFEU
  • Collective position
  • Dominance
  • Abuse
  • Merger control

Collective dominance and oligopolies

Competition concerns relating to collective dominance and oligopolies may be dealt with in various ways under EU competition laws:

  1. Article 101 TFEU

  2. under Article 102 TFEU

  3. under the EU Merger Regulation (EUMR).

The below addresses collective dominance and oligopoly issues outside of Article 101 TFEU.

The concept of collective dominance has been developed through case law relating to Article 102 TFEU and the EUMR. The case law suggests that this concept is the same under the two regulatory instruments, however there are important differences between the analysis in each context.

Collective dominance and Article 102 TFEU

Article 102 TFEU prohibits abuses by one or more undertakings of a dominant position (see further, The prohibition on abuse of dominance).

EU case law has established that Article 102 TFEU extends to abuses of a dominant position held collectively by multiple undertakings that may not separately hold a dominant position.

In order for there to be an abuse of collective dominance in breach of Article 102 TFEU, it needs to be established that:

  1. a collective position is held between separate undertakings

  2. that collective position is one of dominance, and

  3. there has been an abuse of that collectively dominant position.

Collective position

In order for there to be a position of collective dominance, there must be some form of economic links between the undertakings concerned, such that they present themselves or act on

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