Algorithmic “collusion” and the application of article 101 TFEU: can an agreement exists without a concurrence of wills?

Algorithms pose interesting challenges to competition law, particularly discussing which practices involving this fast-paced technologies may or should be caught under Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). As AI-driven pricing algorithms become increasingly prevalent across various industries, they offer significant efficiencies to firms and consumers, but also raise concerns about their potential to facilitate the implementation of anticompetitive practices. Moreover, at least in theory, it is argued that algorithms may achieve “collusive” outcomes without being programmed to do so but rather converging positions autonomously. Thus, the analytical framework of algorithmic practices under competition law depends, first and foremost, on undertakings’ use of algorithms. However, to better understand such analysis, it is important to primarily understand how algorithms work, and which factors affect the delivered output, while bearing in mind the essential concepts about collusion in EU competition law. Ultimately, it will be defended that while express algorithmic collusion fits within the traditional legal framework, autonomous algorithmic “collusion” seemingly lacks the requirement of a concurrence of wills, meaning that it should not be captured by Article 101 TFEU.