Thursday, October 22, 2009
Posted by D. Daniel Sokol
Frederic Depoortere (Skadden) & Giorgio Motta (Skadden) ask The Doctrine of Collective Dominance: All Together Forever?
ABSTRACT: What are the policy objectives underlying the collective dominance (“CD”) doctrine under Article 82 of the EC Treaty and what is the legal test governing its application? Even today these questions remain partially unanswered. EC competition law still appears to lack a robust and consistent legal standard for identifying when companies should be held “collectively dominant” and when their conduct constitutes an abuse. In addition, the lack of clear policy objectives has not assisted the debate on these issues. They may even have lead to a significant decrease in the European Commission’s interest in CD situations: the recent Guidance on Enforcement Priorities (“Enforcement Guidance”), which presumably sets out the Commission’s enforcement priorities under Article 82, does not cover collective dominance at all.
Possible policy objectives for CD are outside the scope of this article, which concentrates on providing some observations on the test currently endorsed by the Community Courts (“Courts”) to identify abuses of CD. In its Compagnie Maritime Belge judgment (“CMB”), as confirmed by subsequent case law, the ECJ proposes a three-prong test: (i) the existence of a collective position/entity, (ii) such collective position being dominant, and (iii) the abuse by the collectively dominant entity. The first and third prongs are the main focus of this article.