Parallelism in EU and US Competition Law
New Horizons in Competition Law and Economics series
Chapter 8: Lessons from collective dominance: re-thinking the relationship of articles 101 and 102
The evolution of collective dominance described in the previous chapters reveals the presence of two linked factors fostering and characterizing that process: the debate around oligopoly and the interference of articles 101 and 102. The application of collective dominance, in its current meaning – legally and economically independent companies holding joint market power and acting as if they were a single company – came from the necessity of addressing tacit collusion and overcoming the main obstacle to the application of art. 101 to cartel-like effects – that of showing the existence of a meeting of minds behind parallel conduct that apparently comes from oligopolistic interaction alone. Nowadays, collective dominance appears as a very broad category, virtually embracing every kind of parallelism harming competition, even the more impalpable case of pure parallelism, realized in the absence of communication and not supported by evidence of any ‘plus factors’ showing the existence of a conspiratorial scheme behind the alignment of conduct. Despite this evolution, both the origin of collective dominance and the quite anomalous solution of applying to cartel-like conduct a rule originally introduced to deal with monopoly still influence the approach to this topic. The original tension between arts. 101 and 102 has constantly emerged in EU case law about collective dominance, being embodied in the praxis of jointly applying arts. 101 and 102 to parallelism. Even after Courts recognized that collective dominance can result from oligopolistic market functioning and, therefore, in the absence of conduct that also breaches art. 101, the actual application of art.
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