Beyond Human: Reconstructing Article 101 TFEU for Autonomous Algorithmic Collusion

Abstract

The European Union's "Economic Constitution" establishes competitive markets as a prerequisite for democracy and liberty. However, autonomous pricing algorithms challenge this order by achieving cartel-like outcomes through optimization rather than human conspiracy. In these digital environments, coordination emerges as a stable, self-enforcing result of structural adaptation and price transparency. This shift threatens the fundamental right to competitive markets guaranteed by the Treaties and the Charter of Fundamental Rights. Current Article 101 TFEU doctrine is paralyzed by anthropocentric requirements, such as a "concurrence of wills" and the requirement of "direct or indirect contact." Under the Eturas standard, the presumption of innocence prohibits liability without proof of awareness, a threshold impossible to meet when algorithms coordinate autonomously. This creates an enforcement gap where private algorithmic power operates beyond legal reach, ultimately undermining the Rule of Law. To resolve this "constitutional antinomy," the paper proposes importing administrative law concepts, specifically acte détachable and fait générateur. By isolating the human "design phase" as a separable act, liability can be anchored in the intentional decision to deploy a coordination-prone system. This framework shifts the focus from the autonomous execution phase to the triggering event of deployment, where human agency and awareness reside. This reconstruction satisfies proportionality and respects the presumption of innocence through the use of rebuttable presumptions and accountability principles derived from GDPR Article 22. Grounded in the Ordoliberal tradition, the proposal frames the regulation of algorithmic design as a positive obligation of the state to maintain a competitive order. Such an evolution of Article 101 TFEU is essential to ensure that constitutional guarantees remain effective in automated markets.