Abstract
Over the past couple of years, many competition and antitrust scholars have feared the dawn of ‘algorithmic collusion’. Some have thus suggested expanding the notions of ‘collusion’ and ‘agreement’ in order to capture such coordination. Rather than using an expansive reading of ‘collusion’, the author of this article suggests an approach that works with the core and original intent of Article 101(1) TFEU: the fostering of independent conduct and prevention of market coordination. It finds this to be doctrinally undisputed and also consistent with long-standing competition policy debates, as well as an egalitarian notion of price that lays the foundation of the free market economy. On this basis, and considering given uncertainties, an operational notion of ‘collusive risk’ is put forward.
Highlights
This paper looks at the impact that the large-scale implementation of algorithmic pricing could have on competition law, in particular competition law’s primary rule: the absence of collusion and the securing of independent and rivalrous conduct
This paper argues that this reading is consistent with EU case law and competition law doctrine, and with theoretical and policy debates concerning ‘tacit collusion’
Since some scenarios of algorithmic coordination would not meet the requirements of Article 101 (1) TFEU as a matter of semantics, this article has looked at the original intent of Article 101 (1) TFEU to establish a basis for future regulatory intervention
Summary
This paper looks at the impact that the large-scale implementation of algorithmic pricing could have on competition law, in particular competition law’s primary rule: the absence of collusion and the securing of independent and rivalrous conduct. The paper explores the current suggestions on how to capture algorithmic collusion with the competition law toolkit. It finds that the debate on the expansion of the notions of ‘agreement’ or ‘concerted practices’ is somewhat circular and has reached a dead end. This paper argues that this reading is consistent with EU case law and competition law doctrine, and with theoretical and policy debates concerning ‘tacit collusion’. It is further in line with commonly accepted egalitarian conditions for market conduct found in contract law and contract theory. While this article deals primarily with EU competition and Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU) –the EU’s rule against collusion in the form of agreements between undertakings that restrict or distort competition–, its assumptions and findings apply to other jurisdictions
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