Competition Policy and the Oligopoly Problem: the Weakness of Cartel rules against Tacit Collusion
US and EU competition policy towards collusion appears, on the whole, dominated by substantial under-enforcement. This under-enforcement lies also in the prevalence of non-interventionism in recent decades, allied with the need to prove the existence of information exchanges in tacit collusion cases.
Possible adjustments to the traditional approach to collusion — by the adoption of economic analysis as a source of “plus factors” — may improve antitrust enforcement. However, insofar as evidence of meeting of mind is needed, cartel rules remain a weak tool for the control tacit collusion. Moreover, recent proposals to broaden the notion of “cartels” to include mere parallelism of conduct harmful to competition appear difficult to implement.
Effective control over collusion may be achieved by applying other rules (namely, Section 5 FTC Act and art. 102 TFUE), which do not require evidence of conspiracy or meeting of minds. Yet, under this approach, the antitrust reaction is limited to injunctive relief.