Ordo Iuris Warns of EU Oversight Regime for ChatGPT

The European Commission has designated ChatGPT as a Very Large Online Search Engine under the EU's Digital Services Act, placing it under the strictest oversight regime the regulation provides for. The Ordo Iuris Institute has published a legal analysis warning that the Commission's new powers could, in practice, lead to restrictions on freedom of speech and the imposition of uniform standards on what views the chatbot is allowed to express.

ChatGPT's New Legal Status

The European Commission's decision covers three digital services: ChatGPT, Reddit and Roblox. All three declared they had exceeded the threshold of an average of 45 million monthly users in the European Union, which under Article 33 of the DSA automatically triggers strict obligations for their providers. ChatGPT was placed in the VLOSE category, meaning a very large online search engine, while Reddit and Roblox were placed in the VLOP category, covering very large online platforms.

VLOSE status requires OpenAI to implement additional mechanisms, including annual audits, procedures to protect minors, measures against election-related disinformation, and data access for EU researchers. Ordo Iuris does not dispute the fact that ChatGPT is subject to regulation, but rather the way the DSA divides oversight powers between the Commission and the member states.

Centralized Commission Control

According to the Ordo Iuris analyst, the key problem is that designation as a VLOP or VLOSE shifts oversight authority from national Digital Services Coordinators directly to the European Commission, which gains exclusive competence in this area. The institute points out that this model bypasses both courts and national regulators at the earliest stage of proceedings, which raises doubts from the perspective of the separation of powers and the principle of subsidiarity.

Designation as a VLOP or VLOSE means not only the imposition of additional obligations on a service provider, but also a shift of oversight powers from the national Digital Services Coordinators to the European Commission itself, which holds exclusive competence with respect to the obligations set out in Section 5 of the regulation. This kind of centralization of oversight over entities with global reach in the hands of a single administrative body, bypassing courts and national regulators at the earliest stage of proceedings, raises doubts from the point of view of the separation of powers and the principle of subsidiarity underlying the European Union's legal order - Patryk Ignaszczak, analyst at the Ordo Iuris Centre for International Law

The institute notes that the Commission also has a broad arsenal of investigative tools at its disposal, including the power to request information, conduct on-site inspections, and impose interim measures before a case is decided on its merits. It is precisely this lack of early judicial review that, in Ordo Iuris's assessment, raises the greatest procedural concerns.

Interim Measures Before Final Decisions

Ordo Iuris stresses that the measures most burdensome for a provider, such as orders to cease or remedy an alleged infringement, can be applied by the Commission even before a final, appealable decision is issued, let alone before it is reviewed by a court. Only the final decision is subject to review by the General Court of the European Union and, subsequently, the Court of Justice, a process that can take years, as illustrated by the still-unresolved proceedings over Amazon's designation as a VLOP. In the meantime, the measures imposed by the Commission have full factual and financial effect on the designated entity.

It remains an open question whether enforcing this standard against the first AI chatbot to hold VLOSE status will stay within the bounds of proportionality, or whether it will become the starting point for far broader control over how artificial intelligence systems formulate answers on topics relevant to public debate - Patryk Ignaszczak, analyst at the Ordo Iuris Centre for International Law

Earlier Dispute Over the DSA

This is not the first time Ordo Iuris has criticized EU digital services rules. The institute had previously raised objections to Poland's national law implementing the DSA, pointing to risks to freedom of speech arising from the procedure for blocking content deemed illegal. These arguments had already surfaced in the public debate over how the EU regulation should be implemented in Poland.

For Polish businesses and users of ChatGPT, the new status means in practice that key decisions about which chatbot-generated content is deemed problematic will be made at the EU level rather than the national one. Ordo Iuris warns that without precise limits on proportionality, such a mechanism could in the future extend beyond illegal content to material that is merely politically inconvenient.

The European Commission defends its approach by arguing that unified oversight of the largest digital services is meant to prevent enforcement from becoming fragmented across 27 national regulators and to ensure consistent protection for users, including minors, from harmful content. The dispute over where the line lies between protection and excessive interference in AI-generated content remains open and will likely end up before EU courts in the coming months, as previously happened in the Amazon case.