Artificial Intelligence and Anticompetitive Agreements in EU Law – WilmerHale

The rise of artificial intelligence (AI) and its widespread availability raise questions regarding its potential use in violating EU competition law. This issue is complex due to two characteristics of AI systems highlighted under the EU AI Act’s definition of such systems: (1) they operate with varying levels of autonomy and (2) they infer from the input they receive how to generate outputs such as predictions, recommendations or decisions that can influence physical or virtual environments.
This blog post explores the role of AI in anticompetitive horizontal and vertical agreements under Article 101 of the Treaty on the Functioning of the EU, as well as how AI could assist regulators in enforcing competition law rules.
Horizontal Agreements
AI may be used in cartels or hub-and-spoke arrangements. While autonomous price coordination does not violate EU competition law, it raises interesting questions for the future. Horizontal agreements in the AI market would be similar to those in other markets. However, due to AI’s high importance and growing demand, and the scarcity of talent and AI skills, no-poach agreements reducing competition in the labor market might be particularly noteworthy.
Vertical Agreements
Most vertical agreements, which involve competitors at different supply chain levels, do not breach EU competition law. The European Commission’s Guidelines on Vertical Restraints clarify that this is because the complementary nature of the activities performed by the parties involved in such agreements often means that pro-competitive actions by one party will benefit the other, ultimately benefiting consumers. However, certain vertical agreements may raise competition concerns under EU law.
Enforcement
Competition authorities are considering using AI to enhance case management and assist them in investigations by analyzing data and expanding e-discovery capabilities. This could help reduce the length of investigations, thereby limiting costs and uncertainty for companies under investigation. However, deploying AI for such purposes will likely take time, as it must be carefully designed and tested to ensure appropriate legal safeguards, including regarding the rights of defense, the right to good administration, and compliance with EU data protection and AI Act regulations, namely the GDPR and the AI Act.
The authors would like to thank Ioannis Dellis for his assistance in preparing this alert.
+32 2 285 49 58
+32 2 285 49 87
Unless you are an existing client, before communicating with WilmerHale by e-mail (or otherwise), please read the Disclaimer referenced by this link.(The Disclaimer is also accessible from the opening of this website). As noted therein, until you have received from us a written statement that we represent you in a particular manner (an “engagement letter”) you should not send to us any confidential information about any such matter. After we have undertaken representation of you concerning a matter, you will be our client, and we may thereafter exchange confidential information freely.
Thank you for your interest in WilmerHale.

source
This is a newsfeed from leading technology publications. No additional editorial review has been performed before posting.