International AI competition statement signals joint commitment by antitrust enforcers

A joint international statement supporting competition has been signed by the European Commission, the US Federal Trade Commission (FTC) and US Department of Justice (DOJ)m and the UK’s Competition and Markets Authority (CMA). The move is aimed at unlocking the opportunities for growth and innovation provided by AI technologies, whilst ensuring fair and open competition.

The three overarching principles for protecting competition in the AI ecosystem stipulated in the joint statement – fair dealing, interoperability, and choice – mirror the core principles that already underpin competition rules for digital markets in the EU and UK. The Commission and the CMA may seek to use these new powers to address competition concerns stemming from AI, with the Commission already actively enforcing the new Digital Markets Act (DMA) regime.

Although AI is not itself listed as a “core platform service” in the DMA, the Commission considers that the DMA can be used to regulate AI because “AI is covered where it is embedded in designated core platform services such as search engines, operating systems and social networking services”.  In the UK, the CMA has said that it will consider “AI and its deployment by firms” when deciding which technology firms to designate under the new UK regime established by the Digital Markets, Competition and Consumers Act 2024 (DMCCA).

The Commission and CMA will also continue to use their wider competition law powers, outside the DMA and DMCCA, as they consider appropriate, to examine and address potential competition concerns involving AI and the digital sector more broadly.

Alan Davis, competition law expert at Pinsent Masons, said: “The joint statement is an important step, signalling mutual agreement by enforcers in three particularly active and influential antitrust jurisdictions on the potential competition risks that may arise in relation to AI foundation models and AI products, and the key guiding principles to help mitigate them. The involvement of the US antitrust authorities is significant, as most large tech firms and AI start-ups are based in the US.”

AI has fast become an enforcement and policy priority for competition authorities globally, with the CMA leading the way, along with the European Commission and a growing number of EU member states, including Germany, France, Portugal, and Hungary.

However, there are still some concerns around the risk of large tech companies leveraging existing positions in digital markets to newly emerging AI technology. Competition authorities are concerned that these risks could potentially lead those new markets to ‘tip’ irreversibly in the favour of such firms, with implications for potential future innovation, competition, and consumer welfare.

Therefore, in many countries and regions, legislative and regulatory activity aimed at establishing a solid framework of rules on AI has increased, with the EU AI Act being the most comprehensive approach and example so far.

Nils Rauer, AI and technology law expert at Pinsent Masons, said: “Given the power of AI, tools based on AI can impact market behavior in a very efficient and nimble manner. In this context, it is important to note that those who control the data, also control the learning curve and eventually the power of the AI tool. All this happens at high speed given the available computing capacity. Unlawful practices therefore need to be detected and rebutted on short notice. This takes and requires equally efficient collaboration at regulatory and supervisory level. The bodies who aligned themselves in the joint statement are the ones who can and must fight biased processes, misuse, and undue influence.”

Merger control is another area of focus, with EU and UK competition authorities beginning to scrutinise merger and acquisition (M&A) transactions and talent hires ever more closely. Authorities are also concerned about collusion that AI tools could facilitate – for instance, through algorithmic price-fixing – as well as the risk of potential consumer harm.

Davis said: “The new EU AI Act will oblige market surveillance authorities to report to the Commission and national EU competition agencies any information they identify ‘that may be of potential interest for the application’ of EU competition rules. This mechanism will give the Commission and national competition authorities of EU member states another tool for detecting potential competition law infringements involving AI.”

The CMA, FTC and European Commission, as well as various EU national competition authorities enforce consumer protection laws alongside antitrust rules, and often utilise both toolkits to help ensure consumers are protected against using AI products.

“In the UK, the DMCCA has recently placed consumer law enforcement on a par with competition law, by introducing substantial turnover-based penalties and strong enforcement powers for the CMA,” said Davis.