Collective Dominance in EU Merger Control - Substantive Issues

This thesis focuses on collective dominance in horizontal concentrations as regulated under the EU Merger Regulation 139/2004. Chapter 1 introduces the issues that this thesis will examine. Chapter 2 focuses on the concept of collective dominance in mergers by setting out the characteristics of its analysis, its link with tacit collusion and the judgments that have formulated the conditions that must be met in order to establish such a position. Chapter 3 examines the economics of collective dominance as it demonstrates the models of oligopolistic interaction, it emphasises on the game theoretic model of tacit collusion and the related criticism, while it also focuses on the structural features that must be assessed in order to determine the oligopolists’ collusive incentives. Chapter 4 emphasises on the policy considerations related to each Phase of the evolution of the collective dominance analysis and inspects the policy objectives pursued by the regulation of such positions. Chapter 5 examines the alterations brought about by the Merger Regulation 139/2004 substantive test on the appraisal of collective dominance, it focuses on the EU Horizontal Merger Guidelines’ analysis of coordinated effects and makes a comparison to the approach adopted in the 2010 US Horizontal Merger Guidelines. Chapter 6 compares the concept of collective dominance under the Merger Regulation to the concepts of Article 102 collective dominance and Article 101 concerted practices by demonstrating their distinctive approach on tacit collusion. Chapter 7 scrutinizes the relationship between unilateral and coordinated effects by emphasising on their distinctions in economic theory, the set of necessary conditions required to be established and the applicability of econometric analysis. Chapter 8 highlights the proof of collective dominance in mergers as it focuses on the allocation of the burden of proof, it discerns the applicable standard of proof and examines the judicial review of the Commission’s decisions. Lastly, Chapter 9 offers a conclusion on this thesis