Anne C. Witt (EDHEC): “The next major challenge is anticompetitive conduct generated by AI”

What are the main legal challenges raised by the digital economy, particularly in the relationship between Big Tech and European regulators (1)?

Anne C. Witt: In competition law, the main concern, for the past ten years, has been market dominance by a small handful of major players. This means Google in search and internet browsing, Meta in social media, and Google, Apple and Microsoft in operating systems. Regulators try to apply traditional competition rules and focus on two main pillars: abuse of a dominant position and merger control. 

These days, however, it is an open question how effective these tools are. GAFAM have collectively made more than 1,000 acquisitions, and not one has been blocked by either the EU or the United States, although the European Commission has extracted commitments in four cases. As for abuse of a dominant position, which falls under Article 102 of the Treaty on the Functioning of the European Union, four prohibition decisions have been issued against Google alone (2). The European Commission has also found Meta and Apple guilty of anticompetitive conduct. The main challenge in these cases lies in the cost and length of the investigations, which generally end in a fine that companies can afford to pay without changing their behaviour. Companies also have the means to drag the proceedings out and have far greater financial resources than regulatory authorities, which rely on taxpayers’ money. There is a clear asymmetry when it comes to money.

What legal tools could help shift the balance?

Anne C. Witt: The EU adopted the Digital Markets Act (DMA) in 2023 (3). It sets out a few ex-ante rules for the most powerful companies, namely the five GAFAM firms, TikTok’s parent company ByteDance and Booking (4), which have been designated as digital gatekeepers. This status subjects them to special rules meant to make regulatory intervention more effective, quicker and less costly. 

The DMA is already having an impact on major tech companies’ business models. Apple is allowing sideloading of apps within the European Union, and Meta is making WhatsApp interoperable with certain competing communication systems. The discussion also involves more structural issues like asset divestitures and potentially breaking up certain companies. Another option is interim measures which require a company to behave in a certain way before a case has been decided. These have recently been used against Meta in an ongoing case about blocking access to competing AI bots on WhatsApp (5). 

I think the next major challenge will involve anti-competitive conduct autonomously generated by AI models, for example when they work entirely independently to set prices. I am not certain that the tools we designed for individuals and companies can deal with that.

What role can professors and researchers play in developing new legal Tools for the digital economy?

Anne C. Witt: Our first role is to educate. We need to explain existing rules, what purpose they serve and their limits. Personally, I teach across a wide range of programmes: the Business Law & Management track, which is aimed at future legal professionals; the dual degree with Sciences Po Lille, which is designed for those who want to go into the civil service; and the general BBA and Grande École programmes. 

We also contribute to the broader public debate by publishing our research in academic journals or by speaking to journalists. Like many researchers, I am involved in executive education, for example at the College of Europe and the European University Institute. I also take part in training programmes for national judges.

Even more directly, we contribute through public consultations. Whenever the European Union develops new legal instruments it consults a broad range of stakeholders, including law firms, researchers and economists. These contributions are reviewed and incorporated into how new instruments are designed. Competition law enforcers are also significantly increasing their expertise in technology. In 2023, the European Commission created the Office of the Chief Technology Officer to ensure that its decisions are based on a sound understanding of digital technology and to maximise the use of technology to extract and analyse relevant information. This is an important step towards protecting competition in fast-moving and innovative tech markets.

References

(1) - https://france.representation.ec.europa.eu/informations-et-evenements/informations/leurope-regule-les-geants-du-numerique-2024-05-16_fr?prefLang=en

(2) - https://www.edhec.edu/en/research-and-faculty/edhec-vox/google-alphabet-antitrust-enforcement-and-future-of-european-digital-sovereignty

(3) - https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AL%3A2022%3A265%3ATOC&uri=uriserv%3AOJ.L_.2022.265.01.0001.01.ENG

(4) - https://www.edhec.edu/en/research-and-faculty/edhec-vox/gafam-can-the-eu-s-digital-markets-act-rein-in-big-tech

(5) - https://france.representation.ec.europa.eu/informations-et-evenements/informations/la-commission-notifie-meta-de-possibles-mesures-provisoires-destinees-faire-cesser-lexclusion-des-2026-02-09_fr?prefLang=en