Notion of Anticompetitive Agreement Challenged in Digital Environment* Mária T. Patakyová**
Summary: Prohibition of anti-competitive agreements pursuant to Article 101 TFEU and its counterparties in competition law of the EU member states is divided into three forms: agreements, concerted practices, decisions of association of undertakings. Each of them covers a different type of colluding and as such should cover a wide range, ideally all anticompetitive colluding. However, it has been recognised that certain potentially anti-competitive dealings are not covered by any of these forms. The very much discussed example is tacit collusion. This article explores these issues and it sets them into the digital environment. The question to be discussed here is whether the issues are deteriorating in digital environment. A supposed scenario is used to present problems of determination whether a dealing is an anticompetitive agreement. Keywords: Article 101 TFEU, Anticompetitive agreements, Collusions, Concerted practices, Decisions of associations of undertakings, Pricing algorithms, Competition in digital environment
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Introduction
Competition law has always been full of ambiguous terms. These terms are put into life by decisions of competition authorities and judgements of courts. Such approach is beneficial due to the fact that competition law is aiming on covering an economic reality1. Thus, very clear and strict legal restrictions would be easily circumvented by innovative business approaches. This article was supported by a Grant project of “Agentúra na podporu výskumu a vývoja v rámci projektu č. APVV-17-0641: Zefektívnenie právnej úpravy verejného obstarávania a jej aplikácie v kontexte práva Európskej únie”. ** JUDr. Mária T. Patakyová, PhD. Assistant Professor at the Institute of European Law, Faculty of Law, Comenius University in Bratislava, Slovakia, email: Maria.patakyova2@flaw.uniba.sk 1 However, the assessment depends on which school of economics one follows. Much has been written on behavioural economics which question neoclassical’s assumption of rationality. BELLOVÁ, J. Behavioural Economics and its Implications on Regulatory Law. International and Comparative Law Review, 2015, vol. 15, no. 2, pp. 89–102, p. 91. *
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