Software agents for monitoring both customers and competitors, and responding with immediate and intelligent price changes, are readily available. This technology raises novel and difficult questions for the competition regime. Any aspect of the law or enforcement regime which relies on human fragility, bias, fear, or sluggishness, must be reconsidered. Such technology also brings unparalleled opportunities for competitors to predict one another’s responses and for third parties to influence the business practices of their customers.
My research seeks to identify and address the most pressing of the questions raised by the automation of pricing for the enforcement of Article 101 and 102 of the TFEU. The research evaluates the technology available and the online and offline contexts within which it is usually leveraged, including the relevant third parties, the broader legal and regulatory context within which the debate around automation is currently taking place and the role of the competition law within it. Having identified the key issues, the legal questions raised will be addressed by reasoning first from the principles in the jurisprudence to the facts postulated, before reasoning from the facts to the broader normative goals of the competition framework. In doing so, the research will address any disparity between the positive and normative, critiquing the existing jurisprudence. The research also discusses the implications of the preceding discourse for the enforcement regime, in particular how fines and prohibitions, leniency, and Articles 7 and 9 can be used optimally in this context.
Through this critical analysis, this research seeks to provide recommendations for the interpretation of the competition law going forward; where enforcement priorities should lie, and how different legal interpretations can be used to reflect different aspects of the normative framework upon which the law rests.