Antitrust in Digital Markets in the EU: Policing Price Bots

摘要

A number of authors have in recent years stated that current antitrust rules may not be able to police supra-competitive price levels (or indeed other undesirable market outcomes) which may result from the use of price robots. This paper discusses what tools are available in EU antitrust law to tackle collusion by price bots, based on the existing legislation, the case law of the European courts and the practice of the European Commission. It argues that unlawful collusion can result from the disclosure of sensitive information from one undertaking to another, even in the absence of anticompetitive intent. On this basis, even self-learning pricing algorithms could be caught by the prohibition of Article 101 TFEU. Furthermore, undertakings can be liable for the actions of the (self-learning) algorithms they create or use. Undertakings have a positive obligation to ensure compliance with the EU antitrust rules and cannot plead ignorance of what their employees or price bots are doing. And even if there would be circumstances where undertakings could not be found to have been negligent in how they supervise their employees and price bots, the toolbox of the European Commission is large enough to stop practices for which no undertaking is to blame.