The legal treatment of autonomous algorithmic collusion in light of its technical feasibility and various theoretical considerations is an important issue because autonomous algorithmic collusion raises difficult questions concerning the attribution of conduct by algorithms to firms and reopens the longstanding debate about the legality of tacit collusion. Algorithmic collusion, namely, direct communication between algorithms, which amounts to express collusion, is illegal. Intelligent and independent adaptation to competitors’ conduct by algorithms with no direct communication between them, which is tacit collusion, is generally legal. There should be ex ante regulation to reduce algorithmic collusion.

In the United States, more than 10 percent of the population suffers from diabetes. For many, insulin stands between them and decidedly ill health or death. This makes the demand for insulin extremely inelastic. For many low-income diabetics, the cost of insulin accounts for a large fraction of their disposable income, which makes it difficult to pay rent, maintain a healthy diet, and provide for the needs of children and aging parents. As a result, it is important to preserve and promote competition in the insulin market. But the price of insulin continues to rise, indicating that insulin markets may not be competitive. We review two possible explanations. First, there have been allegations that pharmacy benefit managers, whose primary role is to negotiate lower pharmaceutical prices, may be encouraging higher insulin prices to increase rebates and their profits. Second, there have been allegations that the three major producers of insulin – Eli Lilly, Novo Nordisk, and Sanofi – have been cooperating rather than competing. This chapter addresses these allegations and the antitrust response.

The chapter assesses the possible role of market investigation endowed with broad remedies, when a market suffers from competition problems and infringement cases under competition law provisions are infeasible or ineffective. It lays out a number of theories of harm, i.e., reasons why certain market features or behavior by market participants may lead to consumer harm compared to a relevant counterfactual. It identifies theories of harm in markets (i) where none of the firms is dominant and (ii) with a dominant firm but article 102 TFEU is not effective or applicable or (iii) a dominant firm may arise. It also argues that the European Commission should look for simple “intervention triggers” for a market investigation. While some of the identified harms are more likely or more pronounced in digital markets, a presumption that market investigations primarily addresses competition problems in digital markets is misguided. Finally, when sector regulation is, in principle, applicable, market investigations may fill a gap between standard competition tools and sector regulation.

This chapter provides an assessment of the economic merits of the New Competition Tool (NCT), as it was considered by the European Commission as a tool to address structural competition problems in a timely and effective manner. The NCT has strong analogies to the UK’s “markets regime,” which empowers the UK competition regulator, the Competition and Markets Authority (CMA), to initiate market studies and investigations. The authors review the UK’s markets regime and survey some of the competition concerns the regime is intended to address. This includes a selective review of UK market studies and investigations to illustrate some of the ways these concerns have been explored and a description of the remedies imposed or proposed. The authors conclude with a critical evaluation of the UK’s markets regime in light of this evidence and offer seven recommendations regarding the merits and design of market investigations as a New Competition Tool for the EU. In sum, they see a strong case for the introduction of a New Competition Tool to address factors that prevent effective competition in markets, and they see no benefit to limiting it to specific sectors and to dominant firms.