EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Based on the existing case law, it can be said that the conditions laid down in the Airtours judgment are seldom applied. The CJEU overturned The European Commission’s decision in this case due to the fact thatThe European Commission did not have convincing evidence to support the thesis that the planned takeover of First Choice by Airtours would result in a collective dominant position of three companies: Airtours/First Choice, Thompson Travel Group, and Thomas Cook on the market of short-term holiday trips from the UK. In subsequent decisions, the European Commission, following serious allegations by the CJEU regarding the Airtours/First Choice decision, cautiously applied the definition of a collective dominant position set out in this case. The concept of a collective dominant position has the same meaning in the light of Article 102 TFEU and the provisions of the Regulation 139/2004. An abuse of a collective dominant position may imply some form of coordination, which may also fall within the scope of Article 101 TFEU. Breach of Article 101 TFEU, as a result of an agreement concluded by entrepreneurs, does not make them collective dominants. On the other hand, an agreement or concerted action between multiple entrepreneurs does not necessarily prove that there is a collective dominant position. Moreover, the possibility that the collectively dominant companies implement a common policy in the market implies and even requires that competition between them is significantly limited but coordinated behaviour does not in any way require that competition between undertakings be completely eliminated. Rivalry between the parties does not preclude the statement of a collective dominant position. The CFI explained how the economic theory of an oligopoly can be applied in the law of mergers by specifying the criteria necessary for assessing whether in the future merger will facilitate the coordination. In particular, the CFI explained that the market structure must be conducive to the coordination of market behaviour, and that the factors facilitating cooperation include, among other things, homogeneity of products, price transparency, constant demand, and a mature technology. Such market conditions provide two pieces of information: first that price competition is debilitating because no one gains much from a price war and will not fight rivals if costs cannot be reduced by efficiency improvements, and secondly, cooperation is relatively easy because competitors are able to compare prices with each other. Coordination is therefore possible ( Nestlé/Perrier) . Moreover, the CFI also insists that once implemented, the strategy must be demobilizing for any third party to move away from it. This is a factor that the European Commission did not consider in earlier decisions but as the CFI points out it is a necessary feature to prove that a quiet agreement (i.e., a collusive outcome) is durable because only if there is a likelihood of permanence, the merger will have anti-competitive effects (Nikpay, F. Houwen,

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