Oligopolies and Collective Dominance: A Solution in Search of a Problem

Treviso Conference on Antitrust Between EC Law and National Law, Eighth Edition

Fordham Law Legal Studies Research Paper No. 1301693

47 Pages Posted: 16 Nov 2008  

Barry E. Hawk

Fordham University School of Law

Giorgio A. Motta

Skadden, Arps, Slate, Meagher & Flom LLP

Abstract

This paper discusses the doctrine of collective dominance under Article 82 of the EC Treaty in the context of oligopolies. Section I discusses the essentially economics oligopoly problem defined here as the extent of subcompetitive performance (e.g., higher prices, lower output, lesser quality, etc.) resulting from interdependence among rivals. Sections II and III respectively discuss two competition law (essentially legal) concerns largely from a U.S. perspective: the oligopoly gap (concern that any subcompetitive performance cannot adequately be addressed by legal prohibitions of abusive/monopolistic unilateral conduct (e.g., Article 82 or section 2 of the Sherman Act)) and the unproved cartel gap (concern that oligopolies provide an environment in which cartels succeed without proof of the legal requisite agreement or concert e.g., Article 81 of the EC Treaty (Article 81) or section 1)). Section IV discusses Article 82 and collective dominance in the oligopoly context, particularly to what extent, if any, collective dominance has been used to address either the oligopoly gap or the unproved cartel gap. Section V discusses several Member State judgments applying collective dominance to oligopolies.

Suggested Citation

Hawk, Barry E. and Motta, Giorgio A., Oligopolies and Collective Dominance: A Solution in Search of a Problem. Treviso Conference on Antitrust Between EC Law and National Law, Eighth Edition; Fordham Law Legal Studies Research Paper No. 1301693. Available at SSRN: https://ssrn.com/abstract=1301693

Barry E. Hawk (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Giorgio A. Motta

Skadden, Arps, Slate, Meagher & Flom LLP ( email )

1440 New York Avenue
Washington, DC 20005
United States

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