Abstract
The authors examine certain legal problems of antitrust regulation in the digital economy facing the international community, including BRICS member countries. This article focuses on the problems associated with the use of price algorithms by enterprises as a threat factor to competition. The concept of “price algorithm” and the goals of its use by enterprises are analyzed; it is concluded that the use of price algorithms is just one of the tools for conducting economic activity. At the same time, enterprises can pose a threat to competition by using price algorithms as an element of concluding anti-competitive agreements (concerted actions) between enterprises and illegal coordination of their activities. Restriction of competition through the use of price algorithms can harm consumers of goods, works, and services and should be controlled by antitrust authorities. Based on the analysis of the antitrust laws of the BRICS member countries, it is concluded that currently the concept of a “pricing algorithm” is not enshrined in the laws of any of the BRICS member states, however, there are prohibitions on anticompetitive agreements of enterprises and illegal coordination of economic activity. We refute the need to legally enshrine the concept of “price algorithm” in antitrust law. At the same time, it proves that enterprises should be held accountable for the use of the price algorithm as atool to limit competition. The paper proves that within the framework of interstate cooperation of the BRICS countries in the field of competition law, it is necessary to develop common approaches to antitrust regulation in the digital economy, including to ensure auniform approach to regulating and controlling the use of price algorithms by enterprises in the framework of economic activity.
Highlights
The authors examine certain legal problems of antitrust regulation in the digital economy facing the international community, including BRICS member countries
The digital transformation poses a number of challenges for competition authorities and competition law scholars that need to be understood and managed, including the development of technologies and big data that transform traditional established markets for goods and services; new business models based on the use of digital platforms; the cross-border nature of markets not determined by the geographical boundaries of the state; monopolization based on intellectual property, which leads to the containment of scientific and technological progress; cartel conspiracies, which are based on price algorithms, up to the use of robot programs
The main risks associated with the use of price algorithms may be agreements actions of enterprises that can use monitoring and pricing programs to eliminate or prevent competition (“digital cartels”), as well as an element of coordination of economic activity
Summary
Записка секретариата ЮНКТАД, TD/B/C.I/ CLP/54, 1 мая 2019 г. [UNCTAD, Competition Issues in the Digital Economy: Note by the UNCTAD Secretariat, TD/B/C.I/CLP/54, 1 May 2019] (Apr. 16, 2020), available at https://unctad.org/meetings/ en/SessionalDocuments/ciclpd54_ru.pdf. Most scientists claim the complexity and ambiguity of the problems of ensuring competition in the context of the use of artificial intelligence by competing enterprises, including price algorithms as factors for increasing the efficiency of activities. This suggests that this topic needs further research and development. The FAS Russia Commission noted that the use of price algorithms by both LG Electronics Rus LLC and LG smartphone smartphones resellers is not in itself a violation of antitrust laws. Samsung Electronics Rus Company LLC established the coordination of resellers’ economic activities using price algorithms by setting recommended retail prices for Samsung smartphones and tablets. 18 Решение Мурманского УФАС России от 3 июня 2019 г. по делу No 05-03-16/6 [Decision of the Murmansk OFAS Russia of 3 June 2019 in case No 05-03-16/6] (Apr. 16, 2020), available at https://br.fas.gov.ru/to/ murmanskoe-ufas-rossii/05-03-16-6-ebc701b6-df71-4ef4-bb18-4bb972d58ae9/
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