We find at present that there appear to be three different approaches to oligopolies and collective dominance under the EU competition policy: (i) the approach based on economic models of collusive behaviour, used predominantly under the Merger Regulation, (ii) the specific approach to maritime conferences, used predominantly under Article 82, and (iii) the approach followed in the Irish Sugar case, where collective dominance is applied to two firms in a vertical relationship, as opposed to a group of competitors.
It has to be borne in mind that a very frequent configuration of supply in relevant markets shows leading groups of less than four suppliers accounting for a large combined share of output. And also that the Court of Justice has given the Commission a wide margin of discretion to assess the conditions of competition in oligopolistic markets. Finally, the decision in the Airtours/First Choice case has extended the boundaries of the situations under which the Commission may find an oligopoly to be in a collective dominant position, by focusing on a notion of rational incentives, and playing down other factors (transparency of the market, symmetry between the members of the oligopoly) that had been taken prominently into account in previous decisions.
This combination of factors pleads for the adoption by the Commission of some sort of guidance on how it assesses oligopolies under competition rules. The Commission has made a considerable effort in clarifying its policy by adopting guidelines on market definition, and vertical and horizontal restrictions of competition, among others. These guidelines could usefully be completed with guidelines on the treatment of oligopolies under EU competition policy.World Competition