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Joint Dominance in the New European Electronic Communications Code An Opportunity to Ensure Consistency & Legal Certainty

Alexandre Verheyden, Jorge Padilla, A Report Prepared on Behalf of Vodafone, September 2017

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The conclusion of this report is that joint dominance is at the confluent of different competition law concepts. Most anticompetitive practices are the result of formal collusive behaviors caught by Article 101 TFEU or single dominance abuses caught by Article 102 TFEU. Tacit coordination can also produce undesired anticompetitive effects and this is the less common occurrence which joint dominance aims to address. The notion of joint dominance is enshrined in the well-known three Airtours criteria, following the judgment of the European Court of Justice in a case bearing the same name. Our extensive review of legal precedents shows an overwhelming consensus about the fact that the Airtours criteria are the only sound legal basis for finding joint dominance and can only be applied in instances where the risk of coordination is confirmed by hard evidence. This conclusion applies to all types of joint dominance cases rendered by competition authorities and national regulatory authorities. We therefore conclude that any regulatory codification of the conditions for a finding of joint dominance must, at a minimum, integrate the Airtours criteria and provide for safeguards in applying these to situations where actual market data demonstrate the need for regulatory intervention.

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