Digital Markets Act — What are virtual assistants?

For some weeks now, the­re has been con­sidera­ble media inte­rest in so-cal­led intel­li­gent chat­bots. Whe­ther the­se are real­ly intel­li­gent and whe­ther the term “arti­fi­ci­al intel­li­gence” is appro­pria­te at all is open to ques­ti­on. They impress with their access to trai­ning data and num­e­rous pos­si­bi­li­ties for automation.

But even that is not enti­re­ly new now, only the offer for us end users is curr­ent­ly very vivid. For some time now, the­re have been thoughts about the next fore­seeable tech­no­lo­gi­cal leaps. One of them is that of so-cal­led per­so­nal assistants. In very gene­ral terms, this can be unders­tood as a pro­gram­me that com­ple­tes tasks accor­ding to the indi­vi­du­al spe­ci­fi­ca­ti­ons of its user. In very sim­pli­fied terms, this could be a pro­cess that, wit­hout being asked and wit­hout me having to set it up every time, finds the best pos­si­ble and/​or most eco­no­mic­al train con­nec­tion for my busi­ness appoint­ments. — For the pur­po­ses of this artic­le, I assu­me that the rail­way com­pa­nies would have to pro­vi­de the cor­re­spon­ding data. I will descri­be else­whe­re what pro­blems exist with data access and how the­se can be sol­ved under cur­rent law. — In short, a per­so­nal assistant can take a lot of ever­y­day work off your hands. Some search engi­nes are alre­a­dy deve­lo­ping in this direc­tion, sim­ply by making their search pro­ces­ses easier to use and auto­ma­ting them. A typi­cal fea­ture is the so-cal­led self-lear­ning effects that can occur becau­se the sys­tem can try out and com­bi­ne all pos­si­ble alternatives.


The Digi­tal Mar­kets Act has alre­a­dy reco­g­nis­ed this deve­lo­p­ment. It con­ta­ins the term “vir­tu­al assistant”. Accor­ding to Art. 2 No. 2 lit. h) DMA, this is also a cen­tral plat­form ser­vice. A gate­kee­per can the­r­e­fo­re also be included in a desi­gna­ti­on decis­i­on with a vir­tu­al assistant offe­red by it. In this case, the sub­stan­ti­ve obli­ga­ti­ons would app­ly to him.

But what is a vir­tu­al assistant? Accor­ding to the defi­ni­ti­on in Art. 2 No. 12 DMA, it is soft­ware that can pro­cess orders, tasks or ques­ti­ons, inclu­ding on the basis of input in sound, image and writ­ten form, ges­tu­res or move­ments, and that enables access to other ser­vices or con­trols con­nec­ted phy­si­cal devices on the basis of the­se orders, tasks or ques­ti­ons. This typi­cal defi­ni­ti­on can be illus­tra­ted a litt­le bet­ter sys­te­ma­ti­cal­ly. Then it beco­mes much simpler:

  1. Soft­ware
  2. Can pro­cess orders, tasks or questions
  3. Enables access to other ser­vices or con­trols con­nec­ted phy­si­cal devices.

The second cha­rac­te­ristic is to be inter­pre­ted very broad­ly and as a result covers all pos­si­ble inputs. This fol­lows from the sub­or­di­na­te clau­se that orders, tasks or ques­ti­ons can also take place on the basis of inputs in sound, image and writ­ten form, even ges­tu­res or move­ments. The third cha­rac­te­ristic addi­tio­nal­ly requi­res that access to other ser­vices or con­trol of con­nec­ted phy­si­cal devices is based on the­se orders, tasks or ques­ti­ons. The basis is again con­ceiv­a­b­ly broad. For exam­p­le, an input by a user at any point in time could con­sti­tu­te a basis pre­cis­e­ly becau­se the sys­tem pro­ces­ses the cor­re­spon­ding infor­ma­ti­on in an abs­trac­ted manner.


First, a gate­kee­per may have obli­ga­ti­ons in respect of all desi­gna­ted cen­tral plat­form ser­vices. Then he must also obser­ve the obli­ga­ti­ons of the DMA with regard to a vir­tu­al assistant if he offers such an assistant. On the other hand, the vir­tu­al assistant is included in the defi­ni­ti­on of the ran­king term accor­ding to Art. 2 No. 22 DMA. The­re it can be infer­red that a rela­ti­ve pro­mi­nence, as is typi­cal in a ran­king, can also be pro­vi­ded by vir­tu­al assistants. This is only con­sis­tent, sin­ce a typi­cal task of such an assistant can also be the per­for­mance of searches.

Two duties are expli­cit­ly addres­sed to vir­tu­al assistants. First, accor­ding to Art. 6(3)(2) DMA, the gate­kee­per must allow chan­ges to be made to the default set­tings of a vir­tu­al assistant, espe­ci­al­ly when using it for the first time. Second­ly, accor­ding to Art. 6(7)(1) DMA, the gate­kee­per must enable effec­ti­ve inter­ope­ra­bi­li­ty with hard­ware or soft­ware func­tions that can also be acces­sed with vir­tu­al assistants. Inter­ope­ra­bi­li­ty in this con­text means a func­tio­ning data exch­an­ge so that the vir­tu­al assistant is suf­fi­ci­ent­ly usable from the user’s per­spec­ti­ve. Pur­su­ant to Art. 6 para. 7 sub­pa­ra. 2 DMA, the gate­kee­per has the pos­si­bi­li­ty to take neces­sa­ry and appro­pria­te mea­su­res to ensu­re integrity.

About the author

Porträtbild von Dr. Sebastian Louven

Dr. Sebastian Louven

I have been an independent lawyer since 2016 and advise mainly on antitrust law and telecommunications law. Since 2022 I am a specialist lawyer for international business law.

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