The Oligopoly Problem and the Concept of Collective Dominance: EC Developments in the Light of U.S. Trends in Antitrust Law and Policy

2 Colum. J. Eur. L. 25 (1995)

Barry J. Rodger. Lecturer in Law, University of Strathclyde, Glasgow.

“The final problem of antitrust policy is its inability to make satisfactory contact with oligopoly.”

This article aims to examine the complex issue of the control of oligopolistic markets. In particular it will assess European Community competition law provisions and the associated competitive problems or “market failures,” notably parallel and excessive prices and exclusionary practices. The article shall first identify leading American antitrust theories, the Harvard and Chicago schools, and then examine the application of antitrust law within the U.S. Given the importance of oligopoly in American antitrust law, a brief look at American case law should help illuminate the current European debate. The American approach is especially important for two reasons: most of the theoretical and empirical analysis in this field originated in the U.S.; and even more importantly, the greater dialogue between economics and law is exemplified in its antitrust law. The theoretical assumptions underlying many of the legal approaches to antitrust are interesting, both generally and within the specific “oligopoly” problem, as approaches to the specific depend a great deal on perceptions of the wider role of antitrust law and policy. Moreover, though Articles 85 and 86 of the EC Treaty adopt a two-pronged “attack” on oligopoly similar to the Sherman Act, the U.S. debate is more advanced. Therefore, it also seems appropriate to analyze EC antitrust law and policy in light of the U.S. framework.”