Oligopolies are characterised by the presence of few strong players and a high level of transparency that allow undertakings to monitor each other’s conduct and to unilaterally adapt their behaviour to that of the other undertakings. The unilateral conduct of oligopolists may have anticompetitive effects. Since EC Courts have concluded that the peculiar interdependence between oligopolists can lead to a position of collective dominance, it is important to determine whether such unilateral conducts is a legitimate reaction to the other members’ behaviours, or to the exploitations of a collective market power, which would represent an abuse prohibited under Article 82. In the absence of clear guidance from the Discussion Paper on Article 82, distinguishing features of abuses of collective dominant positions can be derived from the principles previously elaborated by the Courts for complex agreements under Article 81 in light of the similarities between the two legal institutes. If applied by analogy, these principles lead to the conclusion that unilateral conduct should be considered as an abuse of collective dominance only when it is the manifestation of a collective dominant position, when the other members of the oligopoly are aware of them and, most importantly, when they benefit from them.
World Competition