LAW AND ECONOMY: COLLECTIVE DOMINANT POSITION - COMPETITION AUTHORITIES - ARTICLE 102 TFUE - TACIT COLLUSION - DEFINITION - AIRTOURS CRITERIA - DETECTING - STANDARD OF PROOF - EX POST INTERVENTION - ECONOMIC DEFINITION

Collective dominant position: Overcoming the Airtours criteria in the ex post control of anti-competitive practices

The Airtours criteria do not allow establishing ex post the existence of a collective dominant position as they are used to identify market situations where there is a risk that a collective dominant position emerges in the future. In an ex post intervention, it is necessary to demonstrate that tacit collusion was effective in the past and not that there is simply a risk. In enforcement of article 102 TFUE, such a standard of proof is not out of reach as competition authorities have the means to analyze the past in order to demonstrate that it actually fits a tacit collusion equilibrium. In addition, economic analysis provides robust tools for detecting tacit collusion. In particular, the presence or the absence of incentives to deviate from a common line of interest is a robust and simple test to implement since, being a direct result of the economic definition of tacit collusion, it does not depend on the relevant model of competition in a given industry.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Introduction 1. Although the concept of collective dominance originated in a case of anti-competitive [1]practices, it has flourished mainly in merger control. In this area, collective dominance allows for a risk of anti-competitive effect, which is different from the classical horizontal effects known as "unilateral" effects and is characterised by changes in the market structure brought about by a merger which may facilitate the emergence of collusive behaviour. These effects are referred to as coordinated effects. 2. Community case law has led to the development of an economic test to characterise a risk of coordinated effects. The cumulative criteria

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Éric Avenel, Gildas de Muizon, Nathalie Daley, Collective dominant position: Overcoming the Airtours criteria in the ex post control of anti-competitive practices, December 2011, Concurrences N° 4-2011, Art. N° 39886, pp. 41-50

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