Recent events suggest that Article 102 TFEU may prohibit the abusive conduct of tacitly colluding firms. Yet can the Commission enforce this law? In this article, I argue that it cannot. I show that proof of ongoing tacit collusion requires the Commission to overcome a difficult problem of identification, notably how to distinguish tacit collusion from other very subtle conducts like unconscious parallelism and undetected overt collusion. I claim that the Commission cannot resolve this problem by establishing the typical conditions drawn from case law, such as the lack of effective competition, the Airtours criteria and a focal point, as proof of these conditions cannot mitigate error sufficiently. Abusive and tacitly collusive conduct may not even be at all plausible in real world. I conclude that a problem of detection and costly error restricts dramatically the ability of the Commission to combat tacit collusion by using Article 102. Such a policy, if carried out, would be misguided.
World Competition