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April 28, 2007

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liyang

Nicolas, do you know a European case where a joint dominance within Article 82 was concluded solely based on a structural link between undertakings on a market where, let's say, there is no behavioral link, such as conference, merger, or R&D agreement between those undertakings. If were there none, do you believe such a case will come out?

Nico

Thanks Liyang for your comment. On the top of my head, I'd say none except the Irish Sugar case, with parents/subsidiaries capital links. Problem in that case is that Irish sugar and its subsidiary were not competitots on same market, so makes it a weird case. Commission and CFI held both companies jointly dominant. The best explanation of that case can be found in G. MONTI, “The Scope of Collective Dominance under Article 82 EC”, (2001) 38 Common Market Law Review, 131.

Nico

Thanks Liyang for your comment. On the top of my head, I'd say none except the Irish Sugar case, with parents/subsidiaries capital links. Problem in that case is that Irish sugar and its subsidiary were not competitots on same market, so makes it a weird case. Commission and CFI held both companies jointly dominant. The best explanation of that case can be found in G. MONTI, “The Scope of Collective Dominance under Article 82 EC”, (2001) 38 Common Market Law Review, 131.

Liyang

Nicolas, thanks for your reply. I have no chance to read that article yet, but I will definitely read it later. However, when taking about Irish Sugar case, I am always confused by a question which may be stupid though. :) The question is why the Commission did not regard Irish sugar and its subsidiery as one undertaking based on a fact that it owned more than 50% in its subsidiary, but dealt with this situation according to joint dominance. Does competition law suppose there should be competition between a company and its controlled companies?

Ariel

Liyang, the answer to your question is that the Commission accepted Irish Sugar's argument that it did not control the management of SDL, despite holding 51% of SDH's capital. Absent control, the commission was unable to treat the two companies as one economic entity.

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