13.4.5 The DC, in its investigation report, has concluded that the MoR and CONCOR constitute a group namely the "MoR Group" in the relevant market in terms of explanation (b) to Section 5 of the Act. However, both MoR and CONCOR maintain that the DG's conclusions are based on the erroneous premise that MoR is an enterprise for the purpose of the Act. CONCOR, additionally, maintains that the reasons given by the informant, do not, ipso facto stand to mean that the MoR controls the management and affairs of CONCOR and that the two constitute a 'group' for the purpose of abuse of dominant position under Section 4 of the Act. CONCOR, also submits that under the provisions of the Act, it is a necessary condition for establishing abuse of dominant position, that there is a 'Joint and coordinated action between CONCOR and MoR for their mutual benefits and advantage.' CONCOR relies on the ECJ case, France v. Commission, Societe Commerciale (1998) ECR I- 1375, to further the point that a joint dominant position would exist in a group, if they are able to, because of factors giving rise to a connection between them, adopt a common policy on the market and act to a considerable extent, independently of their competitors, their customers, and ultimately the consumers. Additionally, it also relies on ECJ case, Corn pagine Maritime Beige Transports SA v. Commission (2000) ECR I- 1365, so as to further submit that the DC should have also considered whether the MoR and CONCOR, constituted a collective entity vis-à-vis their competitors, their trading partners and consumers in a particular market. According to CONCOR, if the said analysis had been undertaken, the DC would have found that the MoR and CONCOR do not constitute a collective entity. It has been further contended by CONCOR that the DC should have examined the factors, if any, which give rise to a connection between the members of the group. Also, the DC ought to have considered and analysed, in detail, as to whether CONCOR's operations are kept at an arm's length by the MoR and whether CONCOR, carries its day to day affairs and management, relating to its businesses, independently of the MoR.
