On February 19, 2020, the European Commission published its strategy for a European digital transformation that benefits citizens, businesses and society (press release available here). This strategy proposes promoting digital solutions to foster an open and democratic society, with a dynamic and sustainable economy. The European Commission identifies the digital transformation as a key factor in the fight against climate change and in achieving the technological transition, with the intention of positioning Europe as a leader in the digital sector.
To implement this strategy, the
European Commission has published: (i) the Communication on Strategy for Data and (ii) the White Paper on AI. These proposals are part of the digital agenda
planned for the 2019-2024 period, headed by the European Commissioner for
Competition, Margrethe Vestager.
- White Paper on Artificial Intelligence (“AI”)
The White Paper on AI proposes a regulatory and investment-oriented approach with a
twofold purpose: (i) to promote the uptake of AI, and (ii) to address
the risks associated with certain uses of this new technology. This is based on
the principles of an “ecosystem of excellence” to
create the right incentives to accelerate the adoption of AI-based solutions
along the value chain and an “ecosystem of trust.” To build
this trust, in the absence of a common regulatory framework, existing EU rules
on consumer protection and data protection—such as the existing directives on
safety and product liability—will continue to apply, with no restriction as to
the possibility of adjusting the rules according to the specific needs of AI
systems. This is discussed in more detail in a supplementary report.
A specific, new regulation is proposed based on a
high-risk approach, which consists of imposing mandatory requirements on AI
applications that may involve higher risks associated, for example, with the
sector concerned (such as health, mobility or law enforcement activities). In
these cases, AI systems must be transparent, traceable and ensure human
oversight. The authorities must be able to test and certify the data used in
the algorithms.
For AI applications that do not pose a risk, voluntary
regulatory schemes are proposed, to which operators may opt to adhere to
guarantee the quality of their applications.
The Commission has opened a public consultation until
May 31, 2020, to allow interested parties to comment.
Stressing the importance of data in today’s economy and
society, the Commission also presents the strategy for the free flow of data
for the next five years, focusing on measures and investments to support the
data economy in Europe. These measures seek to keep the European Union at
the forefront of the data economy, while observing and promoting the fundamental
data protection values on which it is based.
The Commission aims at setting up a single European
data space where data can circulate throughout the European Union, in
compliance with European values and regulations. This will be achieved by
establishing a legislative framework for the governance of these spaces that is
committed to transparency and clarity, and favors experimentation (through
sandboxes). To this end, “European data pools” should be created enabling Big
Data analytics and machine learning, especially in sectors such as
manufacturing, agriculture, health and mobility.
The Commission intends to move forward together to
(i) ensure the availability of data between the different actors, favoring
the exchange of data between the public and private sectors (likely through the
“Data Act” planned for 2021), with the implications this may have for
competition law; (ii) overcome existing imbalances when it comes to SMEs;
(iii) ensure data interoperability and quality; (iv) reduce
dependence on external strategic infrastructures by investing in and
strengthening Europe’s capabilities and infrastructures for hosting, processing
and using data; and (v) empower data subjects with regard to their rights,
in particular by enhancing portability rights.
From the point of view of competition law, the
Communication proposals on data entail:
- The necessary adaptations to competition law, within
the framework of the implementation of ex-ante regulations for Big Tech
platforms;
- the potential analysis of the use of data in the area
of merger control; and
- in some cases, the need to share data.
Throughout the year, the Commission is expected to make
further progress in promoting the European model of digitization and building a
single regulatory framework to avoid fragmentation of the internal market. The
goal of maintaining a level playing field remains a priority. In this regard,
imposing data sharing obligations and adopting more specific regulations for
Big Tech platforms are looked upon favorably. These issues are being analyzed
by the EU Observatory on the Online Platform Economy.
Although the European Commission’s ideas and proposals
are quite broad in scope, it remains to be seen how they will be implemented.
We hope to have more details on its development during the second half of 2020.
Authors:
Cristina Vila, Adaya Maria Esteban and Mireia Prat
This post was
created jointly by the Intellectual Property and
Competition Departments.
