Collusion Without Coordination: Algorithmic Markets And The Doctrinal Ceiling Of The Anti- Cartel Framework
Mugdha, CHRIST (Deemed to be University) Delhi NCR
ABSTRACT
This paper interrogates the doctrinal limits of the agreement centric framework under Section 2(b) of the Competition Act, 2002, in addressing emergent forms of anti competitive market behaviour that arise without inter firm coordination conceptualised here as structural collusion Unlike tacit collusion, which still presupposes conscious mutual adaptation between rivals, structural collusion denotes collusive outcomes that are an emergent property of shared algorithmic infrastructure and data driven market interdependence, requiring neither communication nor awareness between firms. While Indian competition jurisprudence has progressively expanded the scope of "agreement" to encompass tacit understandings and concerted practices, liability still requires proof of inter firm coordination. This paper argues that such a framework is inadequate in oligopolistic and algorithm driven markets, where firms may achieve supra competitive pricing or market partitioning without any traceable meeting of minds.
Eturas UAB v Lietuvos Respublikos konkurencijos taryba where a shared algorithmic booking platform enforced uniform discount caps across hundreds of independent travel agencies without bilateral agreement is deployed as the paradigm instance of structural collusion. The CJEU's difficulty in locating a "concurrence of wills" under Article 101 TFEU directly mirrors the evidentiary impossibility that would confront the CCI under Section 2(b), making it the ideal comparative stress test for the Indian framework.
The paper identifies a critical gap in Indian competition scholarship: while cartels and tacit collusion have received sustained doctrinal attention, structural collusion remains a legally unrecognised and therefore unregulated category of harm. This gap is not merely theoretical. The CCI's investigations into Google Android (2022), Amazon and Flipkart (2024–25), and the lens manufacturers' cartel (2023) each encountered conduct where algorithmic price alignment was documented but evaded Section 3 liability precisely because no "agreement" within the meaning of Section 2(b) could be established.
