EU competition chief speaks about AI and competition law

When the Director General of the European Commission’s Directorate General for Competition (DG COMP) speaks, people listen.

When he speaks about Artificial Intelligence (AI) and competition law, everyone should listen.

This is because Olivier Guersent’s words matter and they give an insight into the Commission’s thinking even if the thinking is still relatively early-stage given that AI has yet to unfold fully.

Guersent was addressing the Autoridade da Concorrência – the extraordinarily impressive Portuguese competition agency – on its 20th anniversary – at its annual Lisbon Conference when he spoke about the Digitial Markets Act (DMA) as well as AI.

His key messages were:

  • the main competition challenges from AI relate to:
    • biases
    • fairness
    • privacy
    • security
    • accountability
    • transparency
  • the Commission will use its full toolbox - antitrust, dominance, merger control and the DMA rules - to tackle AI competition problems
  • “Antitrust enforcement has inspired and will keep inspiring digital regulation.”

He begun by recognising how the digital transformation has improved lives in many ways, but he immediately said that large online platforms pose new challenges. He said that there was a consensus on the need for action to address these challenges. He said that this consensus is the reason why the process leading to the adoption of the DMA, including the negotiations with the EU’s co-legislators, went “so smoothly.”

Interestingly, he said that the DMA (which is enforceable from 7 March 2024) and antitrust enforcement complement each other and will coexist. This is because, he observed, they address different issues. He said that the European Commission will continue to enforce Article 102 of the TFEU – the main EU rule on abuse of dominance - in relation to the practices of gatekeepers that are not covered by the DMA, and in relation to dominant companies that either do not qualify as gatekeepers or do not provide core platform services. Moreover, the highly experienced Guersent observed that “antitrust enforcement has inspired and will keep inspiring digital regulation.”

While the European Commission is the sole enforcer of the DMA, it is true that Member State competition agencies and the EU will have to work together and Guersent observed that the Dutch competition agency had seconded people to the European Commission for six months, as part of a Joint DMA Investigative Team. He expects that other national competition agencies will send personnel to the European Commission as well.

On AI, he said that it will probably transform much of our work and private lives. He thought the main challenges relate to:

  • biases
  • fairness
  • privacy
  • security
  • accountability
  • transparency

He said that these issues motivated the European Commission in 2021 to propose a new package to boost investment in AI and regulate it. This is the draft AI Act. The draft measure is still under negotiation within the EU.

Guersent said that EU’s aim is to ensure that people can trust that AI as being safe and compliant with fundamental rights.

Importantly, he said that AI can also raise competition concerns. He identified two main concerns:

  • AI can facilitate collusion between algorithms or make it more difficult for competition authorities to detect them and this “is why DG Competition is increasing its capacity to detect antitrust infringements”
  • the AI sector itself can raise competition concerns. Based on the EU’s experience in digital markets, anti-competitive strategies and a “winner-takes-all” outcome cannot be excluded. This is because AI systems rely on vast amounts of computing power and data. Companies that have access to cloud services’ facilities and vast amounts of data – or to unique data sets – can be incentivized to favour their own AI systems. He said that this meant that in turn, these AI systems, once deployed on smartphones or virtual assistants, can be used to favour the other services that these companies provide.

He mentioned three tools which the EU will use to address competition law concerns in AI, namely:

  • antitrust rules (i.e. the rules on anti-competitive arrangement and abuse of dominance), if competition concerns materialize
  • merger control, if businesses engage in “killer acquisitions”
  • the DMA where the EU may add new core platform services like AI systems, if warranted.

His speech was a valuable glimpse into the future. It was not overly detailed because the detail does not exist.

Ultimately, the speech pointed to three future developments:

  • the Commission’s plan to publish by mid-2024 a draft of Guidelines by Exclusionary Abuses
  • the EU’s plan to adopt the AI Act shortly
  • there will be competition cases in the AI space with some of them falling under the DMA but mostly on issues which have not yet been devised let alone resolved.

For more information on this post, please contact Dr Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.

Date published: 13 November 2023