Chillin'Competition

Not unlike excessive or discriminatory pricing claims, complainants purporting to lodge allegations of abuse of collective dominance face a tough job to convince the Commission to start proceedings.

In a 2005 case that went largely unnoticed (the EMC/European Cement Producers Decision), the Commission held that mere allegations that some firms belong to an association of undertaking and participate to meetings do not, in and of themselves, establish the existence of  “links” within the meaning of the traditional collective dominance case-law (CMB, TACA, and other cases).

“§120: EMC failed to provide substantiated evidence relating to the circumstances in which the Portland cement producers collectively hold a dominant position. Indeed, EMC has not given any indication of the existence of any link or factors which give raise to a connection between the European cement producers. The mere fact that Portland cement producers are members of Cembureau and that their representatives take part in meetings of the Technical Committee of CEN is not sufficient in order to prove the existence of a collective dominant position”

“§44: In the case of collective dominance the undertakings concerned must, from an economic point of view, present themselves or act together on a particular market as a collective entity.

§45: In order to establish the existence of such a collective entity on the market, it is necessary to examine the factors that give rise to a connection between the undertakings concerned. Such factors may flow from the nature and terms of an agreement between the undertakings in question or from the way in which it is implemented, provided that the agreement leads the undertakings in question to present themselves or act together as a collective entity. This may, for instance, be the case if undertakings have concluded cooperation agreements that lead them to coordinate their conduct on the market. It may also be the case if ownership interests and other links in law lead the undertakings concerned to co-ordinate.

The key explanatory factor for this is arguably that the Commission does not want to uphold Article 82 EC allegations as a surrogate for unproven cartel behaviour. In this case, the parties were primarily seeking to establish an Article 81 EC violation and, only ancillarily, had invoked Article 82 EC.

This decision should thus be interpreted as another illustration of the Commission’s reluctance to act upon abuse of collective dominance complaints (to be read also in conjunction with the Laurent Piau case and the Commission’s Guidance Communication on Article 82 EC which leaves collective dominance outside of its enforcement priorities).

(Wikipedia Image. Possibly subject to copyrights. Source here)