Collective dominance: An overview of national case law

Since the Airtours saga [1], the European Union ("EU") law on collective dominance has entered into a period of relative repose. The shift from a structural approach to a more behavioral, game-theoretic approach is now embraced by the EU Commission, which has incorporated the case law of the EU General Court in its Guidelines on the assessment of horizontal mergers [2]. Along these lines, any finding of collective dominance is now conditional on the proof that: (i) it is relatively simple to reach a common understanding on the terms of coordination (the "mutual mindset" condition, or C1); (ii) each member of the oligopoly has the ability to know how the other members are behaving in order to monitor whether or not they are adopting the common policy (the transparency condition, or C2);