ABSTRACT
In this chapter,1 an attempt will be made to provide evidence of mergers leading to non-coordinated effects in oligopolistic markets.2 It will be interesting to assess whether any difference in treatment can be detected as to how non-collusive oligopolies have been analysed under the dominance and SLC tests.3 This chapter will consider the existence of “gap” cases in the current case law. The aim is to identify important merger cases that fell into the realm of non-collusive oligopolies. These cases were chosen after research that was conducted in the jurisdictions analysed herein. The initial sample of cases included cases that had features similar to the ones of collective dominance but were characterized by differentiated products. The cases herein are put in chronological order so as to illustrate the development of the case law related to non-coordinated effects in oligopolistic markets. The list of cases does not purport to be exhaustive, however, it clearly indicates the existence of a gap in the application of the dominance test. The number of cases not only of the European Commission but also of the national competition authorities that apply the dominance test is likely to be significant. The conclusion of this chapter will present the implications of the gap in the application of the dominance test for some of the new member states. This chapter includes a comparative approach of examining mergers where the outcome of the assessment could be different under the dominance test and the SLC/SIEC test in various legal systems. The focus of the chapter will be mergers dealt under the original ECMR. When the decisions on these merger cases were taken, the concept of non-collusive oligopolies was not recognized in the ECMR.4 Other legal systems that will be included in the analysis are the United Kingdom,5 Finland, New Zealand,6 the United States,7 and Australia.8 Some of these jurisdictions have adopted the SLC test (for example, the United Kingdom, New Zealand, Australia) while in others the SLC test has been used as the substantive legal criterion since the early 1900s (for example, the United States).9
