Assessment of AI-enabled Price Discrimination Under Competition-Related Rules in the EU
摘要
Similar to China, the EU has established a comprehensive legal regime to protect, among other things, competition on the merits and consumer welfare in the case of AIPD in digital markets. In order to address concerns raised by AIPD with exclusionary and exploitative effects, competition law provides an ex-post assessment of AIPD based on Article 102 TFEU. Meanwhile, other competition-related rules open the possibilities for ex-ante compliance through data protection, consumer protection and the protection of fair competition in digital markets. More specifically, (AI-enabled) price discrimination may fall within the scope of Article 102(c) TFEU if the abusive conduct places other trading parties at a competitive disadvantage and thereby creates negative effects in competition. However, when undertakings are equipped with massive amounts of Big Data and accurate algorithms in digital markets, it becomes quite challenging for competition authorities to qualify price discrimination by defining “dissimilar conditions” in “equivalent transactions” and identifying “trading parties” are placed at “a competitive disadvantage”. Even if these terms are being interpreted properly, it remains uncertain whether Article 102(c)TFEU applies to business-to-consumer relationships. Nevertheless, Article 102 (a) TFEU prohibits abusive conduct which directly or indirectly imposes unfair purchase, or selling prices or other unfair trading conditions without the conditions of Article 102(c) TFEU being satisfied. The first sentence of Article 102 TFEU also provides the general prohibition of abusive conduct with anti-competitive effects. As such, this chapter examines whether price discrimination may also amount to an abuse of dominance under Article 102 (a) TFEU or the general prohibition included in the first sentence of Article 102 TFEU without the conditions of Article 102(c) TFEU being satisfied. However, Article 102 TFEU addresses competition concerns in ex-post manner. Whether the approach under Article 102 TFEU can effectively cope with the challenge caused by AIPD still requires further empirical examination. An alternative option may be to regulate digital markets ex-ante. There are EU laws related to competition issues that can contribute to addressing the concerns caused by AIPD in both business-to-business relationships and business-to-consumer relationships. In business-to-business relationships, the EU Platform to Business Regulation (P2B Regulation) lays down rules to ensure that business users of online intermediation services and corporate website users in relation to online search engines are granted appropriate transparency, fairness, and effective redress possibilities. Aiming to safeguard innovation, growth, and competitiveness in digital markets, the Digital Markets Act (DMA) imposes obligations on gatekeepers, which are without prejudice to the application of Article 102 TFEU. In business-to-consumer relationships, the Unfair Commercial Practices Directive (UCPD) applies. Aimed at a high level of consumer protection, it provides general definitions of an unfair commercial practice and identifies misleading commercial practices and aggressive commercial practices as two typical categories of unfair practices, which may be relevant to AIPD. The Unfair Contract Terms Directive (UCTD) offers protection against unfair terms in contracts concluded between a seller or supplier and a consumer, and may be relevant to tackle concerns caused by AIPD. Furthermore, the General Data Protection Regulation (GDPR) protects the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data, which thereby also provides the possibility to tackle concerns caused by AIPD in its process of collection and processing of consumer data.