In response to the European Commission’s consultation on the first review of the Digital Markets Act, ARTICLE 19 presents our new report: A Review of the Digital Markets Act: Unlocking Contestability and Fairness in Cloud and AI.
The first review of the Digital Markets Act (DMA) is a key opportunity to strengthen its scope and effectiveness. This matters especially in the current geopolitical context, as the gatekeeping power of large technology platforms has become a central question in the European political and public agenda. The DMA plays a vital role in addressing this power, and ensuring fairer, more contestable markets.
The DMA is not a backward-looking instrument but one that’s meant to evolve and adapt over time – and so it’s crucial that it considers new areas and emerging challenges in digital markets. This is why our report focuses on ways in which the DMA can play a role in addressing market power in the fast-evolving areas of cloud computing and artificial intelligence (AI).
In cloud computing, we urge the European Commission to recognize major providers with gatekeeping power as falling within the DMA’s scope, even where quantitative thresholds are unmet. Any further delay in designating cloud service providers would risk undermining not only the effectiveness, but also the credibility of the DMA itself. We also stress the need to coordinate the DMA with the Data Act to fully leverage their synergies.
Regarding AI, we call for the immediate launch of a market investigation under Article 19 DMA to determine whether new AI-related Core Platform Services should be introduced. Furthermore, we believe a legal case can already be made for treating generative AI assistants as falling within the existing DMA category of virtual assistants.
The report also focuses on the set of existing DMA obligations that might be further developed to secure contestability and fairness in the provision of cloud and AI-related services. We offer recommendations that include specific legal interpretation of existing obligations; the expansion of the scope of some obligations; as well as the introduction of new obligations to fill existing gaps.
Lastly, we look at how gatekeepers are strategically deploying AI to further entrench their power or to extend it to the provision of other services. We provide some considerations for how the DMA can address this – both under its current framework and in the context of a prospective revision.
The principles underpinning the DMA obligations are sound and helpful; however, to meet the challenges ahead, they need to be expanded, both in scope and in depth. Our recommendations are built on the belief that the value and potential of the DMA lies in its flexible, market-engineering nature. Only by recognising this unique characteristic can we guarantee that DMA can fully achieve its public interest goals.