Using Abuse of Collective Dominance in Article 102 TFEU to Fight Tacit Collusion: The Problem of Proof and Inferential Error

Abstract

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.