Legal Test for Finding of a Collective Dominant Position under Article 102 TFEU

Abstract: If two undertakings agree to increase their prices, companies may infringe Article 101 of the TFEU which prohibits anti-competitive agreements and concerted practices. If the market is divided between two or more undertakings, the agreement may constitute abuse of collective dominance under Article 102 TFEU. The undertakings might be able to adjust their behaviour so that they could behave as they would have an agreement to increase their prices. The principle of collective dominance under Article 102 TFEU may fill this gap and catch behaviour outside of the scope of the Article 101 TFEU. It may be difficult to define whether such conduct should be tackled under Article 101 TFEU or Article 102 TFEU, through collective dominance, or could such conduct constitute infringement of one provision with support from another. Therefore, it is necessary to analyse whether the Article 102 TFEU can be used as a standalone provision, without reliance on Article 101 TFEU. The purpose of the thesis is to investigate whether it is appropriate to use Article 102 TFEU, through the application of the abuse of collective dominance, against implicit collusion. The essential part of the thesis analyses the legal test for finding of a collective dominant position under Article 102 TFEU. In theory, the legal test for finding of a collective dominant position is the same for ex ante and ex post cases. In reality, such an interpretation seems to be impractical and inappropriate.