AI & Competition law: Germany nudges thinking forward

The German competition authority (Bundeskartellamt) organised an AI experts group meeting towards the end of June to discuss AI, competition and restrictions on competition.

The group discussed challenges faced by competitors of major cloud service providers, the competitive framework for AI Foundation Models, data barriers to market entry, cooperation between AI and cloud providers, and the development of AI applications for companies and end users.

The United Kingdom’s competition authority has not produced anything on the subject since publication of a Strategic Update in April 2024 and, the same month, it sought views on AI partnerships and other arrangements.  The latter was in relation to its investigation into whether the partnership between Microsoft and OpenAI, Inc constituted a merger. This apparent lack of engagement about AI is perhaps because the authority’s Digital Markets Unit has formally been operating since the start of this year and the subject of AI is being subsumed into considerations under the Digital Markets, Competition and Consumers Act 2024.  This seems to be the case given the authority’s publication in July of a ‘roadmap’ of actions it likely would take in the event it decides that Google should be designated as having Significant Market Status (SMS) in relation to digital search services.  The roadmap identifies actions directly or indirectly regarding AI in relation to (i) choice screens: ensuring people can easily choose and switch between search services (potentially including AI Assistants) – by making default choice screens a legal requirement, and (ii) publisher controls: ensuring transparency, attribution and choice for publishers in how their content, collected for Search, is used in Google’s AI services (including AI Overviews and Gemini AI Assistant).