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Towards a New EU Legal Framework for Artificial Intelligence

Updated: Feb 15, 2022

The notion of Artificial Intelligence (AI) is a wide ranging notion covering a set of diverse technologies meeting a wide range of needs. It includes the so-called 'expert systems' - which tend to reproduce analyses and activities according to human’s predefined logic schemes and rules - as well as systems of 'machine learning' through which AI applications by analyzing large volumes of data can autonomously identify reference models and new rules to implement them.

Bearing in mind the worldwide rapid technological development of AI in Countries such as China or the United States which invest heavily in this field, also the EU has decided to become a world leader by promoting an European framework for artificial intelligence applications responding to people’s needs and fundamental rights while remaining sustainable, safe and reliable (See the European Commission Communications since 2018 Artificial Intelligence for Europe” to the latest Communication in April 2021 Fostering a European approach to Artificial Intelligence” COM(2021) 205 final). Moreover an European Approach on AI has become an essential element of the Europe’s 2030 Digital Targets Strategy, framing the initiatives already taken by some EU Member States and avoiding different standards for fundamental rights as well as a fragmented EU Internal Market for the AI developers and operators.

The new AI Legislation has to be read together with other ambitious EU initiatives in the digital sector, such as the Data Governance Act, Digital Services Act (DSA) and Digital Markets Act (DMA) whose aim is to create a safer digital space in which the fundamental rights of all users of digital services are protected;to establish a level playing field to foster innovation, growth, and competitiveness, both in the European Single Market and globally.

The EU Commission Legislative Proposal on AI

The European Commission’s Legislative proposal defines in Title I “AI systems” broadly as “software that is developed with one or more of [certain] approaches and techniques . . . and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing the environments they interact with.” Overall, the proposal:

  • imposes tailored obligations on actors at different parts of the value chain, from “providers” of AI systems to manufacturers, importers, distributors and users;

  • sets harmonised rules for the development, placement on the market and use of AI systems in the Union following a risk-based approach.

This approach covers the following situations:

a) Unacceptable risk (Title II) AI systems considered a clear threat to the safety, livelihoods and rights of people will be banned. This includes AI systems or applications that manipulate human behaviour to circumvent users' free will (e.g. toys using voice assistance encouraging dangerous behaviour of minors) and systems that allow ‘social scoring' by governments. Specific restrictions and safeguards are proposed in relation to certain uses of remote biometric identification systems for the purpose of law enforcement.

b) High-risk (Title III) :AI systems identified as high-risk include AI technology used in, inter alia:

  • critical infrastructures (e.g. transport), that could put the life and health of citizens at risk;

  • educational or vocational training, that may determine the access to education and professional course of someone's life (e.g. scoring of exams);

  • safety components of products (e.g. AI application in robot-assisted surgery);

  • law enforcement that may interfere with people's fundamental rights (e.g. evaluation of the reliability of evidence);

  • migration, asylum and border control management (e.g. verification of authenticity of travel documents).

The proposal sets out the legal requirements for high-risk AI systems in relation to data and data governance, documentation and recording keeping, transparency and provision of information to users, human oversight, robustness, accuracy and security.

c) Low-risk: This proposal allows the free use of applications such as AI-enabled video games or spam filters. The vast majority of AI systems fall into this category. The draft Regulation does not intervene here, as these AI systems represent only minimal or no risk for citizens' rights or safety.

It is worth noting that some AI systems such as the ones interacting with natural persons or the systems for emotion recognition or biometric categorization, and systems that generate “deep fakes “shall comply with enhanced transparency obligations (see Title IV).

On a more positive action the legislative proposal support also innovative AI applications (Title V) such as regulatory sandbox schemes, lower regulatory burdens for small and medium-sized enterprises and startups, and the creation of digital hubs and testing facilities.

Mirroring the similar Governance Framework of the General Data Protection Regulation (GDPR) also the AI legislative proposal (Titles VI-X) creates a fully-fledged regulatory and enforcement regime overseen by a European Artificial Intelligence Board working with national supervisory authorities entrusted with ensuring the application and implementation of the regulation , as well as drive the development of standards for AI. In addition, voluntary codes of conduct are proposed for non-high-risk AI, as well as regulatory sandboxes to facilitate responsible innovation.

In Brussels the Commission will be in charge of monitoring the effects of the proposal. It will establish a system for registering stand-alone high-risk AI applications in a public EU-wide database. As it happens at EU level in the Data Protection domain also AI providers will be obliged to inform national competent authorities about serious incidents or malfunctioning that constitute a breach of fundamental rights obligations as soon as they become aware of them, as well as any recalls or withdrawals of AI systems from the market.

After five years since the entry into force of the Regulation the Commission will publish a report evaluating and reviewing the proposed AI

Legislative work has already started at European Parliament and Council level and can be followed at this address.

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