THE IMPACT OF THE USE OF ALGORITHMS ON ANTI-COMPETITIVE AGREEMENTS BETWEEN UNDERTAKINGS IN EUROPEAN UNION COMPETITION LAW
THE IMPACT OF THE USE OF ALGORITHMS ON ANTI-COMPETITIVE AGREEMENTS BETWEEN UNDERTAKINGS IN EUROPEAN UNION COMPETITION LAW

Summary/Abstract: The rapid expansion of artificial intelligence and the widespread deployment of algorithms in the commercial strategies of undertakings have fundamentally reshaped the competitive landscape of the European Union’s internal market. This article examines anti-competitive agreements between undertakings facilitated by algorithms from the perspective of EU competition law, with particular focus on the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU) to novel forms of algorithmic coordination. The central argument is that anti-competitive agreements do not constitute an autonomous legal concept but a synthetic doctrinal construct, whose conceptual flexibility is sufficient to encompass algorithm-facilitated conduct without requiring express legislative reform. The article analyses the main functional typologies of algorithms, including pricing, monitoring and prediction functions and identifies three distinct modalities through which they may facilitate anti-competitive agreements: the reinforcement of explicit collusion, hub-and-spoke structures, and autonomous algorithmic tacit collusion. Drawing on landmark European Court of Justice jurisprudence – namely Dyestuffs, Hüls, Anic Partecipazioni, T-Mobile Netherlands and Eturas – the article demonstrates that the notions of agreement, concerted practice and exchange of information are sufficiently elastic to address algorithmic coordination, in particular through the technologically neutral criteria of competitive uncertainty elimination and the presumption of causal linkage between concertation and subsequent market conduct. The article concludes that EU competition law already possesses the necessary conceptual instruments to prevent and sanction algorithmic collusion, and that the primary challenge lies not in normative gaps but in the coherent and adaptive enforcement of existing rules.

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