Lawyers at McCann FitzGerald believe a proposed new EU law on artificial intelligence (AI) is likely to have a significant impact on the procedural and investigative powers of competition agencies.

The Artificial Intelligence Act (AI Act) proposed by the European Commission is currently being discussed by the European Parliament and EU Council.

In a note on the firm’s website, the McCann FitzGerald lawyers describe the proposal as “the world’s first comprehensive AI law”.

Among the main aims of the act are to:

• Create the conditions for the development and use of trustworthy AI systems in the EU by ensuring that such systems are safe and trustworthy,
• Ensure legal certainty to facilitate investment and innovation, and
• Enhance governance and effective enforcement of EU law on fundamental rights and safety requirements applicable to AI systems.

Procedural powers

The McCann FitzGerald note says that the European Commission draft proposes providing designated supervisory agencies with procedural powers that will have implications for national competition authorities across Europe, by indirectly extending the investigative powers of those authorities.

It proposes that designated watchdogs should have “full access” to the training, validation and testing datasets used by the AI provider.

It also provides agencies with the power to request access to an AI system’s source code, though the European Parliament has sought to limit these provisions.

Reporting requirement

The lawyers point out that article 63 of the draft AI Act requires that the national supervisory authorities “without delay” report to both the commission and national competition authorities, “any information identified in the course of market surveillance activities that may be of interest for the application of [European] Union law on competition rules”.

They state that access to this type of data will be significant for competition authorities, as they are usually able to compel information from companies only when they suspect that an infringement of competition law has occurred.

“In a world where companies are increasingly utilising algorithms to make competitively strategic decisions, it is not difficult to imagine that there may be a lot of information available to the national supervisory authorities that would be of interest to their competition-law enforcement colleagues,” the McCann FitzGerald lawyers say.