Algorithmic Collusion: Comparative Legal Analysis of Regulation in Russia and Abroad

Today, companies use different pricing, monitoring, and demand and supply analysis algorithms, which, on one hand, increase profits and benefit consumers (for example, personalized discounts), but, on the other, can damage competition in cases of economic entities using algorithms to implement collusion or anti-competitive one-way behaviour or in cases of self-learning algorithms colluding with no human intervention. Much of the subject matter of this article stems from the adoption of special regulations on the use of algorithms in collusion over the past few years. The use of algorithms for the implementation of anti-competitive agreements in 2023 in Russia (amendments to the Code of Administrative Offences of the Russian Federation) is considered an aggravating circumstance. Foreign countries are developing similar regulation; for example, China has explicitly banned the use of algorithms not only in explicit collusion but also in tacit collusion (2021–2023). The EU has recognized “collusion by code” as a cartel agreement (2023), and the US has proposed special rules to regulate implicit collusion using algorithms that analyze competitors’ data (2024). Researchers have identified the types of harm that may result from the use of collusion algorithms by businesses. This article compares the approaches of countries to regulation of the use of algorithms, taking into account the three types of harm identified by the Organisation for Economic Co-operation and Development (OECD) and used by regulators of countries: whether algorithms are used as a tool to implement explicit collusion in existing agreements between economic entities; whether economic entities do not conclude agreements but nonetheless come to concerted action using similar software that is based on algorithms that generate the same price or market determinations for all competitors; and whether self-learning algorithms conspire autonomously (without human intervention) and without the knowledge of economic agents. Comparative legal analysis will help identify how countries approach the problem of collusive use of algorithms, which has become possible in a digital economy. Methods of research used in this article include comparative analysis of legal acts and law enforcement practices in Russia and abroad.