Chapter 4: A review of collective dominance decisions
4. A review of collective dominance decisions 4.1 INTRODUCTION The previous chapter outlined the legislative provisions that are used to address the potential for firms to tacitly align or coordinate their behaviour. It also outlined the economic theories relating to tacit collusion and the predictions from such theories that may be relevant to the enforcement of the legislative provisions. In this chapter and the next, I examine how economics has, in fact, featured in the decisions of the Commission and the Courts in collective dominance cases and how it has featured in the enforcement process more broadly. In this chapter, the role of economics is assessed in each of these areas based on an examination of the reported decisions of the Commission and Courts. The next chapter looks beyond the text of the decisions, to the processes leading up to, and surrounding, these final determinations, including the identification and selection or non-selection of cases, case construction, the substantive decisionmaking process and the development of remedies. Specifically, this chapter examines the use of economics in relation to three types of decisions: 1. Assessments of the potential for collective dominance in mergers assessed under the ECMR; 2. Assessments of alleged abuses of a collective dominant position under Article 82 of the EC Treaty; and 3. Reviews by the European courts of Commission decisions under the ECMR and Article 82. As discussed in Chapter 2, economics is conceived, for the purposes of the review, as comprising economic theory, the economic approach, economic techniques...
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