Assessing the resilience of fundamental rights vis-à-vis the furthering of the EU Digital Single Market
Ljupcho Grozdanovski & Jerome De Cooman
This week, Ljupcho GROZDANOVSKI and Jérôme DE COOMAN represented the Jean Monnet Centre of Excellence Just AI at the annual ICON•S conference, held at the IE Law School in the lovely city of Madrid.
Jérôme chaired a panel whose ambition was to assess the resilience of fundamental rights vis-à-vis the furthering of the EU Digital Single Market. Ljupcho presented his research on value proceduralism and questioned whether it is a new paradigm in AI regulation and governance.
Other panelists included Angelica A. Fernández and Melanie Fink (who are both members of the JUST-AI JMCE Governance Board) and Francesca Palmiotto.
Their panel explored, on the one hand, if the governance model underlying the European Union (EU)’s current and forthcoming digital legislation strikes the right balance between furthering the Internal Market while sufficiently guaranteeing fundamental rights protection or, on the other hand, if market and values/rights objectives are conflicting or even, irreconcilable. Specifically, the Digital Markets Act (DMA), Digital Services Act (DSA) and Artificial Intelligence Act (AIA) are all-three rooted in European values and fundamental rights, fairness in particular.
The divergence between the three stems from the way in which each instrument operationalizes those values. While the DMA establishes a ‘standard’ economic (market) regulation, the DSA and the AIA epitomize what can be labelled as a risk-to-fundamental-rights-based approach to regulation. The choice of the risk regulation model for the purpose of protecting fundamental rights is surprising, given that it has traditionally been applied in areas (health, environment) where the probabilities for harm are quantifiable (as showcased by available expert evidence). In contrast, the probabilities of fundamental rights violations cannot be quantified. Yet, the EU legislature seems to have considered that the prevention of such violations called for a risk-based regulation.
Through a critical analysis of recent cases studies and the cited instruments, the panellists explored the delicate balance between fostering a thriving digital economy while simultaneously upholding a high standard of fundamental rights protection. The panel highlighted potential areas of tension, proposing policy recommendations for a more ‘axiologically congruent’[1] EU Digital Single Market.
