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From the magazine SZW-RSDA 1/2019 | S. 18-30 The following page is 18

Algorithmen als Anlass für einen neuen Absprachebegriff?

Traditionally, cartels are concluded between natural persons whose behaviour then is imputed to the firms they are acting for. How shall we assess restrictions of competition emanating not from humans, but from algorithms? Long-established definitions of agreements as «concurrence of wills» or «meeting of the minds» do not fit well to the output of machines. Therefore, competition law is struggling with the interpretation of its conventional terms in the digital economy. This article identifies different types of algorithm-related agreements, describes the most important business fields where prices are determined by software and distinguishes between three classes of cases, i.e. unobjectionable conduct, clear agreements and borderline. Whereas tacit collusion should stay out of the cartel prohibition, an algorithm-related contact should constitute explicit collusion according to the general rules on information exchange. When it comes to self-learning algorithms that determine…

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