ABSTRACT
This chapter addresses the question of whether there was a “gap” in the application of the dominance test of the original ECMR. After briefly analysing the purpose of the ECMR the answer to this question will be provided by the analysis of the Airtours1 case and, in particular, how that case illustrated the existence of a “gap” in the application of the dominance test. The historical origin of the term “dominance”, along with the criteria that the General Court considered in Airtours as essential in the assessment of the likelihood of a merger leading to collective dominance, will be analysed. This analysis will also address how the concept of dominance and collective dominance under the ECMR draws from the case law of Article 102 TFEU.2 This part of the book will address the concept of collective dominance, as it is a necessary step in order to fully capture the issues addressed herein.
