The impact of algorithms in our daily lives is ubiquitous. And the impact of algorithms in the competitive environment within which firms operate and consumers shop is equally ubiquitous. Indeed, in the age of Big Data and technological disruptions, algorithms rank search results, help process information and steer prices. The application of antitrust policies to algorithm-driven companies has given rise to what can be referred as “algorithmic antitrust.” This chapter provides an overview of the key antitrust implications of algorithms with a predominantly European perspective. The approach aims avoiding both excessively negative portrayal of the effects of algorithms on competition—since many antitrust concerns rarely materialize—without overlooking the specific and convincing competition issues raised by enforcing antitrust laws to algorithm-driven companies. Algorithmic antitrust in general, and in Europe in particular, deserves particular scrutiny. Without resorting to slogans and catchy answers, this chapter maps out the field before other authors delve into specific topics in the subsequent chapters of this book.

What have we learned from the competition analysis applied to algorithm-driven companies? First, the interest by enforcement agencies and the complexity of the antitrust implications of algorithms suggest that a new area of antitrust inquiry has emerged – namely, what we coin as “algorithmic antitrust”. Second, contrary to early treatments of algorithmic antitrust, the experience of algorithms on competition both reveals considerable innovation benefits of algorithms and limited anticompetitive concerns. As algorithms increasingly become technologies adopted by every company in any given industry, the competitive advantage of algorithms over non-algorithmic competitive shrinks. As algorithmic innovation quickly becomes commonly used, algorithmic competition intensifies, and allegedly anticompetitive conduct becomes common business practices. In other words, more than strong assertions, algorithmic antitrust raises many questions and more questioning than gloomy predictions of algorithm-driven anticompetitive conduct. As companies compete via algorithmic innovations, antitrust enforcement ought to reconsider their overall pessimistic conclusions about algorithmic antitrust and rather ensure that companies embrace algorithms as an innovative way to compete.

The economic analysis of antitrust laws is on the wane. The Chicago School influentially developed an antitrust approach with the principle of economic efficiency as the North Star of enforcement analysis. Robert Bork has seminally singled out The Antitrust Paradox of his time: Antitrust suppressed the competition it should foster. Conducive to an economic analysis of antitrust laws, “Borkian” antitrust has nonetheless experienced continuous criticisms. Recently, powerful assaults revived an old antitrust approach–the populist approach. Self-proclaimed the “Neo-Brandeisians” after Justice Louis D. Brandeis, who extolled small businesses and mocked the “Curse of Bigness,” antitrust populism represents a paradigm-shift away from antitrust law & economics in favor of greater discretionary power in redesigning markets for the sake of a market competition made of small business units. This article argues that the limits of the Borkian antitrust do not justify embracing the populist Brandeisian antitrust. Antitrust is at a crossroads: It can reject Brandeisian antitrust without necessarily reverting to a passé Borkian antitrust. Economic analysis of antitrust laws remains relevant only if we take efficiency seriously–namely, including allocative and productive efficiencies and, most importantly, dynamic efficiency (i.e., innovation). An economic analysis of antitrust laws relevant to today’s (and tomorrow’s) economy can only be innovation-centric. Dynamic efficiency in the antitrust analysis would avoid the misguided populist antitrust approach, but it would also frame antitrust analysis in line with Schumpeterian principles. If innovation matters, Schumpeterian competition needs to be the cornerstone of a renewed economic analysis of antitrust laws.

Today, as we celebrate the 75th anniversary of the Stafford Little Lecture F. A. Hayek delivered at Princeton University titled ‘The meaning of competition’, we have gathered an impressive group of talented speakers who have looked at Hayek’s lecture from a contemporary perspective. In his lecture Hayek defined competition as ‘a process which involves a continuous change in the data and whose significance must therefore be completely missed by any theory which treats these data as constant.’

OVERVIEW It is time for a new approach to antitrust—one that is not grounded in the populist, neoBrandeisian ideology that seeks to overturn antitrust’s focus on economic welfare and create an economy populated by small firms. It is time to modify the long-standing approach to competition policy that, despite prevailing over the last century, does not give adequate attention to technological innovation and dynamic effects. The increasing importance and breadth of innovation indicate the need for innovation-based antitrust. It is time to expand the principles of “dynamic” or “innovation-based” antitrust in order to reform antitrust.

European competition policy applied to digital markets is at a turning point: new regulatory tools are under consideration and traditional antitrust analysis is altered given the new business realities embodied by tech platforms. These envisaged new solutions together with novel antitrust enforcement is justified, on one side, as the appropriate mean to overcome the error of under-enforcement of competition policy in digital markets whereas, on the other side, some criticize this new approach as erring in over-enforcement. Both claims that the other side is erring in its antitrust analysis are unsatisfactory. Each stance does not err, but rather, epitomise preferences towards regulation. This chapter argues and evidences that the new approach advocated by the European Commission for competition enforcement towards digital markets illustrates a preference for precaution. In the vein of the precautionary principle, the Commission’s perspective reveals a precautionary antitrust enforcement. It is neither a policy error nor a legal flaw—it is a regulatory preference for precaution over innovation and disruption. After having Introduced the Precautionary Principle (Sect. 1), this chapter defines Precautionary Antitrust and evidences it so that it becomes apparent that the European competition policy towards digital markets have adopted a regulatory preference leaning in favour of precaution over innovation (Sect. 2). We then conclude on our suggested explanatory framework as a guiding principle in the foreseeable trends in European and American antitrust enforcements (Sect. 3).

Ce dossier offre a la communaute antitrust l'occasion de reflechir a la maniere dont l'AI affecte de facto tous les marches - et donc le droit de la concurrence. Il montre ce que le droit de la…

The populist use of competition policies is on the rise again, associated with the growth of big-tech companies in the era of digital platforms. This article sees antitrust populism as a re-emerging force in the United States and Europe via greater politicisation of competition law enforcement. It addresses the basic tenets of antitrust populism in order to expose the fundamental problems that populist use of competition law entails. I argue for a rethink of antitrust policy on the intellectual foundations laid down by what Mark Pennington describes as 'robust political economy'. We need greater regulatory humility and antitrust enforcement which takes both innovation and welfare seriously.

In Section I of this paper, I examine the origins or seeds of precautionary antitrust by revisiting enforcement by European administrative competition agencies in digital markets. In Section II, I explain how this ideology was embraced, advocated, and advanced in several “tech reports” representing the blossoming of the precautionary principle. I conclude in Section III, by proposing the reinstatement and further development of tools that protect the legal and economic rationale of antitrust, as recognized by European courts.