Update On Artificial Intelligence And Competition Law

On 6 November 2019, the German Cartel Office and the French Competition Authority published a joint report on the competition risks resulting from the use of algorithms (the "Report"). The Report tackles four main issues:

First, it explains that algorithms can be used as "facilitators" in "traditional" horizontal collusion. In such scenarios, the involvement of an algorithm to execute, for example, an agreement to keep prices at artificially high levels by itself does not raise competition concerns, but may be useful to investigate to identify potential counteracting efficiencies or the negative effects of the practice.

Second, the Report explores collusion between competitors involving a third party, e.g. where an external consultant provides the same algorithm or coordinated algorithms to competitors. Alignment is possible at the level of the algorithm or at the level of the input factors. The critical question for the finding of collusion is whether the