Posted By Social Science Research Network
By Petra Pohlmann & David Schütte
In the age of digitalisation, markets become increasingly transparent. Through internet-based trading, there is a large amount of data that market participants seek to utilise for their benefit. Algorithms with very different functions are used for this purpose. Some of these algorithms only have observational functions. They evaluate data to analyse a market. However, market participants also apply algorithms that automatically adjust their prices to those of their competitors (so-called automatic algorithmic pricing). For example, the recent Eturas judgment of the European Court of Justice dealt with joint discounts granted by several Lithuanian travel agencies using automated booking software. Such practices are questionable from an antitrust point of view, as section 1 of the German Competition Act (GWB) and Art. 101 TFEU seek to prevent anti-competitive pricing agreements. However, it is an open question to what extent the conventional (German) antitrust law doctrines apply to cases of automatic algorithmic pricing because anti-competitive (price) agreements traditionally require a human meeting of minds. Moreover, not every price adjustment automatically constitutes a cartel infringement. Rather, a legally permissible tacit collusion will often have to be assumed.
Alongside these there are numerous other problems and questions relating to algorithms and antitrust law. The following bibliography is intended to provide an overview of the current discussion on this topic. Both German and English sources are included in the following list. Firstly, articles, case law and speeches on algorithms and antitrust law are listed (under B). Secondly, there are sources explaining algorithms from a technical point of view (under C). The abbreviations of the German law journals are explained in a glossary at the end (under D). The bibliography includes sources published up until April 2018.