In a critical decision, the European Court of First Instance (“CFI”) reversed the decision of the EC Commission, which had blocked AirTours’ acquisition of First Choice, a rival UK tour operator, under Article 2(3) of the EC Merger Control Regulation on the basis that it would have created a collective dominant position, as a result of which effective competition would have been significantly impeded. From a theoretical standpoint, the most significant part of the judgment is its analysis of collective dominance. However, from a practitioner’s perspective the most important thing about the case is the rigorous approach of the Court. The case confirms that judicial review of merger decisions can be effective, albeit often too slow to save the deal. The Commission can no longer be said to
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