Content area
Full text
I. Introduction
‘That’s the p(rog)ress, baby! And there’s nothing you can do about it!’.1 In the last two decades at least in four cases algorithms have proved to overcome human abilities in playing chess, Jeopardy, Go and poker. If the first human defeat was merely the triumph of computational brute force in a scenario game, in the last case the algorithm created by Carnegie Mellon University has proved capable of analysing a situation made of information asymmetries better and faster than a brilliant thinking human mind.2
The progressive shift from human actors to Artificial Intelligence (AI) in many aspects of everyday life seems to be shaking also the foundations of the antitrust world. Phenomena raising concerns and attracting scrutiny from competition authorities both in the United States (US) and the European Union (EU) are mainly related to price fixing algorithms, which might dismantle the traditional criteria to assess agreements and concerted practices under, respectively Article 1 of the Sherman Act and Article 101 of the Treaty on the Functioning of the European Union (TFEU).
In this respect, some commentators do still stay on the lookout when it comes to new theories of harm and undue concerns about innovation,3 whereas others have preannounced that ‘competition as we know it is going to change’4 as antitrust law, premised on human intent and liability, may be inadequate to prevent companies from breaching competition law in the digital economy era.
From a methodological point of view, the article aims at providing food for thought in a context of scarcity of antitrust literature and lack of Commission decisions and courts’ case law on the matter. Albeit hot, the topic is still highly theoretical as well as the proposed analysis, which tilts the balance towards a modern use of the existing antitrust toolkit to address future algorithmic challenges.
This article is divided into four main parts. Largely inspired by Ezrachi and Stucke research, the first part describes the four potential collusive scenarios in which pricing algorithms might play a pivotal role for antitrust enforcement purposes. The second section presents the author’s proposal to assess (human) liability for algorithms’ anticompetitive conducts and questions the main counterarguments put forward by the available antitrust literature. The third section, as integration...