The use of artificial intelligence in the future of competition law enforcement

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In a future in which the evidential underpinnings for initiating competition law investigations could begin to shift towards a reliance upon the use of artificial intelligence, this paper outlines some of the key opportunities and risks for businesses and regulators. In October 2017, the European Commission (the Commission) published a consultancy tender seeking advice on how artificial intelligence (AI) could improve its processes of evidence management, legal drafting and—as is the focus of this paper—its market intelligence gathering.1 More recently, in its AI White Paper of February 2020, the Commission again expressed an intention to understand how AI can equip ‘law enforcement authorities with appropriate tools’.2 The utility of AI in the processing of large amounts of data and pattern recognition—particularly against the backdrop of a rapidly digitalising European economy— offers considerable opportunities for the future of European competition law enforcement. One only needs to look at the duration of, and scale of evidence gathered in, the Commission’s Google investigations to understand the potentially significant benefits to the Commission of future proofing its enforcement powers with AI-powered analytical tools. For market intelligence gathering and the subsequent initiation of enforcement procedures in particular, the use of AI could provide the Commission with an unrivalled ability to uncover—and conclude—those cases where it appears most ‘likely that an infringement may be found ... cases with the most significant impact on the functioning of competition in the internal market and risk of consumer harm ... [and] cases which are likely to contribute to defining EU competition policy’.4 Indeed, such an approach could prove to be an especially relevant accompaniment to the Commission’s recent ‘New Competition Tool’ proposal.5 This paper outlines the opportunities and risks which businesses and regulators will have to be aware of if and when antitrust authorities use AI to decide on the initiation of investigations or to gather evidence in those investigations.