Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Monday, April 6, 2009

Can the Commission use Article 82EC to Combat Tacit Collusion?

Posted by D. Daniel Sokol

Felix E. Mezzanotte (University of East Anglia - Centre for Competition Policy) asks Can the Commission use Article 82EC to Combat Tacit Collusion?

ABSTRACT: Recent events suggest that Article 82 may prohibit abusive and tacitly collusive conduct. Yet can the Commission enforce this law? In this article I argue it cannot. I tackle this question of enforcement from the perspective of proof and examine to what extent the Commission can establish the conduct of tacit collusion. I show that proof of 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 argue 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 criterion and a focal point, as this proof cannot mitigate error sufficiently. This seeks the Commission to produce greater cogency of evidence, yet only at the expense of rendering enforcement prohibitively onerous. I conclude that owing to a problem of proof (detection) Article 82 is unenforceable and can neither punish nor deter tacit collusion. This makes a policy of using Article 82 to combat tacit collusion ex post misconceived and suggests that tacit collusion admits only an ex ante legal treatment.

http://lawprofessors.typepad.com/antitrustprof_blog/2009/04/can-the-commission-use-article-82ec-to-combat-tacit-collusion.html

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