A Few Reflections on the Recent Case Law on Algorithmic Collusion

By Claudia Patricia O’Kane & Ioannis Kokkoris

The article discusses the limited number of cases where the use of algorithms was found to be a factor that contributed to collusion. We discuss the difficulties that competition agencies face in addressing such conducts, with particular focus on cases where there is no direct communication between competitors but collusion is derived through the use of a third party algorithm. We offer some reflections on the current enforcement approach and we argue that with the current development in enforcement, there is a need for the competition authority to show some type of communication between the members of the cartel in order to substantiate the anticompetitive conduct.

By Claudia Patricia O’Kane & Ioannis Kokkoris¹

I. INTRODUCTION

Technology and its rapid development while transforming businesses is testing the boundaries of the current approach to competition enforcement and practice. Such challenges have shifted the attention of competition authorities, scholars and governments, and are now the main topic of a large number of papers, seminars and discussions. Yet, even if the debate is stimulating, two shortfalls appear evident: (i) the limited understanding of the technologies and their implications, particularly amid certain stakeholders, and (ii) the scarcity of extensive evidence confirming the veracity of the prevailing theories.

One of the most recent challenges in competition enforcement is that