Commission's assessment of oligopolistic dominance under the merger control regulation

This thesis undertakes a critical assessment of a very topical and highly debated question in the development of EU competition law: does the European Merger Control Regulation apply to concentrations that result in collective (or joint respectively oligopolistic) dominance? And, if so, under what conditions?The study suggests that the Merger Control Regulation does, indeed, cover cases of collective dominance. It recommends, however, that a proposed transaction should only be blocked on grounds of collective dominance if it raises substantive doubts that the transaction will create an anti-competitive market structure (like, for example, the Gencor/Lonrho case). Should the doubts not attain the required level, then a two-stage approach is suggested. The first stage would have to screen the proposed transaction as being reasonably capable of guaranteeing a competitive environment (despite the initial doubts as to the collective dominance issue). The second stage would be opened only if the Commission has legitimate reasons to believe that the firms concerned are effectively involved in either concerted practices (Art. 85 EEC Treaty) or in a collective abuse of a dominant position (Art. 86). Interestingly, the Commission seems to have adopted a similar approach in some of the latest border-line cases. After an extensive analysis of the landmark decision Nestle/Perrier, this thesis finds that the described two-stage approach would also have been appropriate in this case