Tacita Potentia: Collective Dominance in India: An Emerging Threat or a Doctrinal Mirage?

What the paper says

In contemporary times, rapid globalization and increasing digitization have fundamentally reshaped market structures, leading to higher concentration levels and the emergence of oligopolistic markets across key industries. As competition increasingly falters not due to explicit collusion but due to information-aided and algorithmic conscious parallelism, traditional antitrust frameworks – designed primarily to punish conspiracies through overt agreements – find themselves inadequate to address these modern threats to competitive integrity. This enforcement vacuum has prompted antitrust jurisdictions to reconsider how competition law should evolve in response.The European Union (EU), recognizing the limitations of conventional positions, developed the concept of collective dominance to capture anti-competitive outcomes in oligopolistic settings without requiring proof of express concert. While the jurisprudence, beginning with the Italian Flat Glass case and clarified in Compagnie Maritime Belge (CMB) and perfected in Airtours, firmly established collective dominance within EU law, its practical enforcement has remained lacklustre. Conversely, the United States has categorically rejected the doctrine, upholding freedom of businesses and reiterating strict requirement of concert under the Sherman Act, thereby sacrificing its ability to regulate tacitly coordinated conduct in concentrated markets.India now faces a critical conundrum. Although its Competition Act is structurally modern, the persistent refusal to recognize collective dominance creates a significant enforcement gap in an economy where digital transparency and algorithmic facilitation of parallel conduct are becoming prevalent. As India aspires toward becoming the world’s third largest economy, it must confront a pivotal question: where should it draw the line between preserving the freedom of trade and preventing the abuse of unbridled market power? This paper examines the global evolution of collective dominance and argues for a calibrated doctrinal and policy response in the Indian competition framework to address emerging structural threats.