Companies should be on their toes when using software tools such
as pricing or monitoring algorithms that check and adjust prices
automatically. If used to implement cartels or monitor resale price
maintenance more effectively, this could lead to higher fines. The
European Commission recommends companies ensure antitrust
compliance by design; blaming the software or limited computer
skills for an infringement will not help. If algorithms are
designed to lead to collusion, companies will be held responsible
by the Commission. Companies should therefore know exactly how
their algorithms work and what they do before using them.
Competition Commissioner Vestager recently warned companies to beware of automated
systems that monitor and adjust prices automatically, as they could
be used for anti-competitive goals. A monitoring algorithm could,
for instance, facilitate price-fixing cartels by screening for
compliance with the fixed price among cartel members. Similarly,
this algorithm could be used to facilitate resale price maintenance
by enabling a supplier to easily monitor the prices set by its
retailers. The Commission is currently investigating whether the
use of this software may have been an aggravating factor in the
online sales practices of a number of consumer electronics
manufacturers (see our earlier In context for more information).
However, it remains to be seen whether the competition rules
will allow competition authorities to tackle all possible unwanted
effects of algorithms. As noted in the earlier joint report on competition law and data by
the French and German competition authorities, it will be difficult
to prosecute if there is no sign of coordination. For instance, if
businesses use a similar pricing algorithm built by the same
company, this could affect price competition without there being
any kind of horizontal coordination between the businesses. In
addition, data-based algorithms could have an impact on price
competition by integrating in their automated price adjustments the
competitors' reactions to price variations, based on past
experiences of price variations, without the need for any contact
between competitors. Time will tell how competition authorities
deal with these issues.
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The Damages Directive, which seeks to promote and harmonise the private enforcement of EU competition law before national courts across the European Union – and which was first published in December 2014 after more than ten years of debate – was due to be transposed into national law by each Member State by 27 December 2016
Turkey's Court of Cassation recently held that the Consumer Court is the appropriate forum for a lawsuit filed by a consumer against a bank, seeking compensation for damages arising from the bank's competition law violation.
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