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

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.