Algorithms in Contemporary EU Competition Enforcement: Evolution Before Revolution?

Algorithms perform a variety of functions within digital ecosystems, many of which have the potential to impact the effective operation of competition in these spaces. Although certain market problems that involve the use of algorithms may take us to the frontiers of contemporary competition law, competition enforcers have already had occasion to grapple with the practical implications of their widespread use in various contexts. This article considers what might be termed the more mundane side of competition enforcement in algorithm-heavy environments, considering areas where algorithm-driven concerns have been accommodated within the established EU competition rules, or at least, have required mere evolution rather than revolution in their application.

By Niamh Dunne¹

I. INTRODUCTION

That the use of algorithms is pervasive across the digital economy is something of a trite observation. Algorithms perform a broad variety of functions within digital ecosystems, many of which have the potential to impact upon — whether for good or bad — the effective operation of competition in these spaces. It is equally trite, if not untrue, to portray algorithms as presenting unique challenges for competition enforcement, in part due to the mystery that shrouds what is often complex proprietary technology, in part to fears that such technology may sooner or later develop an (anticompetitive) mind of its own. Yet, even if certain market problems that involve the use of algo