Algorithmic pricing and market coordination – toward a notion of “collusive risk”

Abstract

Over the past couple of years, many competition and antitrust scholars have feared the dawn of ‘algorithmic collusion’. Some have thus suggested expanding the notions of ‘collusion’ and ‘agreement’ in order to capture such coordination.
Rather than using an expansive reading of ‘collusion’, the author of this article suggests an approach that works with the core and original intent of Article 101(1) TFEU: the fostering of independent conduct and prevention of market coordination. It finds this to be doctrinally undisputed and also consistent with long-standing competition policy debates, as well as an egalitarian notion of price that lays the foundation of the free market economy. On this basis, and considering given uncertainties, an operational notion of ‘collusive risk’ is put forward.