Nowadays digital change and artificial intelligence are dominating competition law. The game changing effects of digital markets and the intensive use of algorithms and deep learning challenge competition law and call for a policy change or at least an adaption to new forms of collusion or discrimination in the digital market. Anti-competitive effects may arise out of the use of algorithms to determine competitive prices. Personalised pricing, its pros and cons are in the limelight.
Furthermore, platforms have gained significant influence on the market. Data portability and interoperability are competitive factors. The network effect and the pulling effect of platforms affect competition. Platforms can have detrimental effects on competitors, on consumers, on consumer welfare and total welfare. These developments are central issues in competition law. They influence the political debate on the prospective regulation of market organisation and market supervision. For competition law four issues stand out: the proper determination of the relevant markets, the evaluation of network effects, the criteria for defining a dominant position and the reach of abuse control (article 102 TFEU). In 2019, the European Commission presented the report on “Competition policy for the digital era” by Jacques Crémer, Aves-Alexandre de Montjoye and Heike Schweitzer. These issues concern all member states. Therefore, similar debates are taking place in other Member States and at the international level. The US competition authority argues for an intensification of supervising the dominant position of the key market players.
What is often overlooked, platforms bind a significant number of self-employed workers. The platforms or their client companies engage these workers instead of increasing their workforce in order to have more flexibility and to benefit of lower (social) costs. The reputation systems and the lack of data portability seem to tie these workers to specific platforms, potentially causing economic dependencies. A number of EU member states (e.g. Austria, France, Germany, Italy, Spain) provide basic labour and social protection to their benefit. Still, the degree of legal protection varies heavily. The self-employed workers have started unionizing and are intending to bargain collective self-regulation to increase their social protection. The main obstacle for collective agreements on prices, terms and conditions is the cartel ban (article 101 TFEU). Labour lawyers have been discussing a general exemption for collective agreements after the CJEU’s judgement in Albany. Competition authorities – e.g. the Dutch authority – are considering providing these self-employed the same protection. It has to be clarified whether self-employed activities should be understood as undertakings in the meaning of article 101 TFEU. To summarize, platforms require rethinking the abuse control of dominant market players and the reach and applicability of collective agreements.
The conference intends to bring together competition lawyers and labour lawyers to discuss the interrelationship between the two disciplines in light of the increased importance of online platforms and the use of AI. The Robert Schuman Centre for Advanced Studies is a think tank which might help to put labour law issues into the limelight of the digital economy.
Part I: Artificial Intelligence and Competition Law
Part II: Platforms as Regulators and Game Changers in Competition
Part III: Social Protection of economically-dependent worker - Collective Agreements as exception of Art. 101 TFEU or the Improvement of Abuse Control
