Collective dominance and oligopoly control in European competition law: Dealing with persistent oligopoly in markets such as telecommunications

This thesis is a study of the development of the law relating to collective dominance and other means of regulating oligopolies where competition may be ineffective or weak. It examines the approaches adopted to regulate anti-competitive arrangements in the context of oligopolies; and the way in which courts have inferred ‘intentionality’ in relation to cooperation and collusion, and distinguished this from conscious parallel behaviour that may otherwise develop in oligopolistic markets.
   The thesis focuses on the development of the concept of collective dominance in the European Union, based on Article 102 of the European Union Treaty. In the European Union the relevant case law is more extensive than elsewhere and has not been constrained by the criminal law settings that apply, for example, to antitrust law in the United States.
   The telecommunications sector has been selected as a case study to illustrate the application of collective dominance law and policy because it is a sector characterised by persistent oligopoly. In addition, it is a sector that is fundamentally important as a driving force for the development of the online society and online economy that increasingly define the way transactions are conducted.
   The thesis examines the development of both the economic literature and the case law on collective dominance in Europe before and after the seminal Airtours case of 2002, and also examines more recent developments that suggest a movement away from reliance on collective dominance law for oligopoly regulation and control. A specific variant of this recent development in the telecommunications sector in the European Union is examined.
   The thesis concludes that the development of the concept of collective dominance has involved adherence as far as possible to the explicit agreement paradigm, with retention of the central notion of intentionality, albeit in an increasingly attenuated form. Although collective dominance is a structural concept it became conflated with the behavioural concept of tacit collusion from an early date and has remained so since. The courts have failed to effectively address the economic perspective on collective dominance, which is concerned with outcomes not with the intentionality of the competitors involved.
   The research has explored the limits of collective dominance and tacit collusion as useful means by which regulators might intervene for ex ante regulation in oligopolistic markets, and has concluded that these concepts can no longer be relied upon for their intended regulatory purposes and that regulatory and legislative means will likely be required for effective oligopoly control.