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EU COMPETITION LAW - Article 102: Abuse of A Dominant Position - Element 2: Joint Dominance

Q: Re Italian Flat Glass [1989] OJ L33/44

The Commission held that three Italian producers of flat glass , who between them held a 79% to 95% share of the Italian market in flat glass, had a collective dominant position in these markets and had abused that position.

Q: Municipality of Almelo v Energiededrifi Ilsselmij NV (case C-393/92)

The potential application of Article 102 to oligopolies has been affirmed by CJ in this case. CJ stated that a collective dominant position would exist when 'the undertakings in question were linked in such a way that they adopt the same conduct on the market'.

Q: Compagnie Maritime Belge and ors v Commission (case C-395 - 6/96P)

CJ noted that it was not necessary to find contractual or other links in law. A finding of collective dominance could be based on ' other connecting factors and would depend on an economic assessmen t and an assessment of the structure of the market in question'.

5 important questions on EU COMPETITION LAW - Article 102: Abuse of A Dominant Position - Element 2: Joint Dominance

Re Italian Flat Glass [1989] OJ L33/44

The Commission held that three Italian producers of flat glass, who between them held a 79% to 95% share of the Italian market in flat glass, had a collective dominant position in these markets and had abused that position.

Municipality of Almelo v Energiededrifi Ilsselmij NV (case C-393/92)

The potential application of Article 102 to oligopolies has been affirmed by CJ in this case.
CJ stated that a collective dominant position would exist when 'the undertakings in question were linked in such a way that they adopt the same conduct on the market'.

Irish Sugar (case T-288/97)

The GC accepted the possibility that Irish Sugar which produced sugar and its distributor were together dominant, thus raising the possibility of vertical collective dominance as well as horizontal collective dominance.

Compagnie Maritime Belge and ors v Commission (case C-395 - 6/96P)

CJ noted that it was not necessary to find contractual or other links in law. A finding of collective dominance could be based on 'other connecting factors and would depend on an economic assessment and an assessment of the structure of the market in question'.

Case T-193/02 Piau v Commission [2005] ECR II-209, para 111

Conditions of satisfying joint or collective dominance:

Each member of dominant oligopoly is aware of how others are behaving so that they can align common behaviour;
Such tacit (implicit) coordination is sustainable over time, i.e. no incentive to depart from common behaviour;
The foreseeable reaction of competitors/consumers must not jeopardise the result expected from the common behaviour.