Performative solidarity: what it means when US, EU and UK antitrust agencies stand together on competition issues in AI

Earlier this week the antitrust agencies of the US, EU and UK issued a joint statement on competition in generative AI foundation models and AI products (the Statement). While the Statement itself does little more than reflect familiar themes from recent public statements, there should be no doubt that this act of performative solidarity is significant. 

The agencies are sending a clear signal that unlike in the 2000s and 2010s, the fact a technology is evolving rapidly will not deter them from taking action, reflecting the broader shift to agencies worrying about the risks of under-intervention at least as much as (if not more than) the risks of over-intervention. 

The Statement 

The Statement from the European Commission (EC), the UK’s Competition and Markets Authority (CMA), and US’s Federal Trade Commission (FTC) and Department of Justice (DOJ) (together the Agencies)  underscores the transformational potential of generative AI and the need for the Agencies to act decisively to prevent any limit or distortion on its impact. The main risks identified in the Statement are:

• the concentrated control of key inputs which could create technological bottlenecks and thus limit the scope for innovation by other market participants;
• incumbent digital firms leveraging their existing market positions to harness the power of AI to their advantage, thus entrenching or extending their market power; and
• arrangements between incumbent digital firms and emerging foundation models (including partnerships, financial investments, and other connections) which neutralise competitive threats.

The Statement confirms that the Agencies will be guided by the principles of fair trading, interoperability and choice in promoting effective competition in this field and will remain attentive to AI being deployed in a manner inconsistent with applicable competition and consumer protection laws. 

This includes, for example, the use of algorithms to enable collusion between competitors and the misuse of consumer data to feed into AI models. The reference to consumer protection law is also notable here and further evidences the growing importance of this tool for the Agencies (with the US and UK agencies also having responsibility for consumer enforcement).

No such thing as new news?

The key messages in the Statement bear significant similarity to issues identified in the CMA’s recent AI strategic update, which is the most extensive public “write up” of potential competition issues in AI Foundation Models and related markets by any major agency to date. It is also aligned with the key themes from Commissioner Vestager’s speech at the EC’s recent AI Roundtable and remarks made by Lina Khan, Chair of the FTC and Jonathan Kanter, Assistant Attorney General of the DOJ.

Despite having very little genuinely “new” content, the Statement is significant in that it confirms that the Agencies are broadly aligned on the approach to take to this technological development and, even more significantly, consider this alignment to be of sufficient importance to merit a public statement. 

Neither of these things could have been taken as a given at previous points of technological inflection when there was strong support for allowing dynamic markets to evolve before intervening, and during which US agencies in particular took a more “hands off” approach to the largest US-based tech companies. 

The importance of powerful friends 

This is the first joint statement of its kind across the US, EU and UK. While there are similar examples (e.g. 2021’s Joint Statement on tech mergers by the UK, German and Australian authorities), the alignment between the Western world’s most prominent antitrust enforcers (US+EC), alongside the CMA which is one of the authorities with the broadest powers, sends a clear message that there is “nowhere to hide”. 

At a time when the largest tech companies are having to fragment their commercial practices to ensure regulatory compliance (in particular with the EU’s Digital Markets Act and Digital Services Act), the significance of this should not be understated.

For the CMA in particular, the support of the EU and US agencies for its actions could be particularly significant. The CMA is gearing up to take on its new powers under the Strategic Market Status Regime, which give it very flexible tools and enormous discretion that could be used to address issues in relation to AI, building on the work done to date, rather than legislation as we have seen in the EU through the AI Act. 

However, the way the CMA exercises its discretion will be closely scrutinised and it will need to justify its decisions to lawmakers. Public support like this from the US agencies in particular will support the CMA against claims of illegitimacy or overreach in respect of investigations into non-UK firms and/or global practices, and is likely to embolden the CMA.

Symbol versus substance

While substantively, the Statement is far from revelatory, symbolically, it is important. What will be even more important is how international cooperation manifests itself in live cases – e.g. those considering partnerships between AI startups and big tech, which different agencies are reviewing using different tools. Warm words around alignment and cooperation come cheap, but as some of last year’s tech merger cases showed, the reality in live cases can be more challenging and divergent. This is not only true on the international stage – within the US, the FTC and DOJ will need to coordinate their overlapping authorities in relation to AI enforcement.

However, with Commissioner Vestager’s term ending in a few months and a major election looming in the US in November, there is potential for further shifts in competition policy within the EU and especially the US as we head into 2025. Only time will tell if any new administration(s) will have the same appetite for international alignment and cooperation.