Artificial Intelligence and Competition Law

Abstract

Artificial Intelligence (AI) is ‘in the air’. The disruptive technologies AI is based on (as well as respective applications) are likely to influence the competition on and for various markets in due course. The handling of opportunities and threats re AI are so far still an open question—and research on the competitive effects of AI has just commenced recently. Statements about AI and the corresponding effects are thereby necessarily only of a temporary nature. From a jurisprudential point of view, it is however important to underline (not only) the framework for AI provided by competition law. On the basis of the 9th amendment of the German Act Against Restraints of Competition (ARC) 2017, German competition law seems to be—to a large extent—adequately prepared for the phenomenon of AI. Nevertheless, considering the characteristics of AI described in this paper, at least the interpretation of German (and European) competition law rules requires an ‘update’. In particular, tacit collusion as well as systematic predispositions of AI applications re market abuse and cartelization analyzed in this paper are to be pictured. Additionally, this paper stresses that further amendments to (European and German) competition law rules should be examined with respect to the liability for AI and law enforcement, whereby the respective effects on innovation and the market themselves will have to be considered carefully. Against this background, this paper argues that strict liability for AI might lead to negative effects on innovation and discusses a limited liability re public sanctions in analogy to intermediary liability concepts developed in tort law, unfair competition law and intellectual property law. Addressing the topic of a ‘legal personality’ for AI-based autonomous systems, this paper finally engages with the consequences of such a status for competition law liability.