The Misleading Consequences of Comparing Algorithmic and Tacit Collusion: Tackling Algorithmic Concerted Practices Under Art. 101 TFEU

• Luca Calzolari ^[1]
  1. [1] University of Turin

     University of Turin

     Torino, Italia

     
• Localización: European papers: a journal on law and integration, ISSN-e 2499-8249, Vol. 6, Nº. 2, 2021, págs. 1193-1228
• Idioma: inglés
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• Resumen

  • Due to digital markets’ transparency, algorithmic collusion may occur even if algorithms are designed to maximize profits rather than to conspire. The literature suggests that competition rules may not cover algorithmic collusion, being the latter an example of tacit collusion: by monitoring market conditions, each algorithm unilaterally and rationally decides to maintain supra-competitive prices. Data analytics ease the monitoring and reaction to competitors’ behaviours, increasing the number of markets subject to tacit collusion. Yet, intention to conspire seems absent. In this Article, it is submitted that algorithmic collusion is different from tacit collusion and can be tackled under EU competition law. In the traditional scenario, undertakings base their rational decisions on the existing markets conditions. While designing their algorithms to maximize profits, undertakings are contributing to create the conditions allowing “tacit” collusion to occur. Moreover, a quasi-strict liability regime applies to antitrust offences, so that intention and imputability play limited roles. As a consequence, if algorithms programmed to maximize profits end up colluding, a rebuttable presumption of the existence of a concerted practice should apply. The practice should be prohibited unless undertakings can prove that, in the specific case, a concerted practice did not occur or that art. 101(3) TFEU applies. Moreover, competition rules may be enforced even without ascertaining any antitrust infringement. Competitive concerns are enough to adopt commitment decisions. Here, the Commission (or a National Competition Authority) may negotiate with the concerned undertakings technical remedies to prevent algorithmic collusion by intervening on the way the algorithms work.