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On 28 September 2022, the European Commission released its long-awaited proposal for an Artificial Intelligence Liability Directive (AILD). In contrast to the high expectations on providing a harmonised liability framework for the damage caused by AI systems, the proposed AILD only proposes minimum harmonised procedural rules to facilitate evidence disclosure and alleviate the burden of proof undertaken by claimants. This article provides a comprehensive analysis of the proposed AILD and points out the problems when implementing the proposed rules. This article argues that the AILD may never reach its full potential as its name indicates. The fragmentation among Member States regarding the substantive matters may preclude the AILD from moving a step further for harmonising substantial issues. While a comprehensive risk regulation (the EU AI Act) must be followed by an effective remedy mechanism, the proposed AILD will not fill this gap in the short run.

When the P2B Regulation1 became applicable on 12 July 2020, it was the first horizontal framework for the platform economy in the European Union (EU). However, the new Regulation was not met with great fanfare. Some commentators dismissed the P2B Regulation as lacking ambition and criticized that one could actually see that it had been put together rather quickly.2 The wider public hardly took any notice of the arrival of the P2B Regulation. Maybe it was just bad timing. Amid a global pandemic, digital platforms were seen as a solution rather than a problem as much of our lives went online. Since then, public opinion on tech enterprises has evolved and the EU has enacted with the Digital Markets Act (DMA) and Digital Services Act (DSA) one of the world’s most ambitious regulatory frameworks for the platform economy.

However, while the DMA has been heralded as the most sweeping legislation to regulate tech since the General Data Protection Regulation (GDPR),3 the P2B Regulation continues to struggle with visibility. The European Commission’s first preliminary review of the Regulation in September 2023 highlighted that ‘awareness among business users and online intermediation services is insufficient’.4 To some extent, this could be attributed to the overshadowing presence of the DMA and DSA. When the Commission published their proposals for the DMA and DSA in December 2020—less than 6 months after the P2B Regulation had become applicable—all political (and most scholarly) attention focused on the twin Regulations. From this perspective, the P2B Regulation could be seen as an ephemeral and insignificant precursor to the DMA and DSA, which became obsolete when the latter two regulations came into force.

Abstract: The adoption of the Digital Markets Act (DMA) has changed the regulatory landscape for the digital sector in Europe and beyond. The DMA amounts to a complete system of ex ante rules that provide for a specific clausus numerus of obligations and prohibitions and aims at fostering contestability and fairness in the area of large digital platforms. The DMA is ostensibly not competition law, since it functions ex ante and not ex post, but in reality, it is very much influenced by competition law and, therefore, is very much seen as the ex ante side of the same coin, the other side of the coin being the ex post competition rules. Like in competition law, the question of private enforcement takes a central role in the overall system of enforcement. The purpose of the present article is to shed light on the private enforcement of the DMA rules. In particular, it deals, first, with the preliminary question, i.e. that the enforcement of the DMA is not restricted to public authorities (the European Commission) but is also enforced by the courts in civil law disputes between private parties. Second, it considers the questions of available remedies in private enforcement, the applicable procedural rules and the rules on jurisdiction and conflict of laws (private international law). Finally, it centres on risks of fragmentation and the DMA mechanisms to remedy this problem.