The EU is committed to making Europe a world-leader in AI and has stated that in order to achieve this, a clear and predictable legal framework is required to ensure consumer protection and legal certainty.

While data protection and privacy have been the focus of EU regulators in recent years, artificial intelligence is a more recent area of focus for the EU legislative agenda in the technology space. While the GDPR, being technology-neutral in its application, will apply to artificial intelligence ("AI") applications, products and services, there are currently no specific EU laws to regulate AI.

There were a number of EU publications on the regulation of AI in 2020, arising from the European Commission's (the "Commission") intention to accelerate digital development in the EU through its adoption of a pan-European Digital Strategy. In February 2020, the Commission published a report on the safety and liability implications of AI (the "Report") and a white paper on AI (the "White Paper") in order to address the gap that exists in relation to specific AI regulation in the EU. Following this, in October 2020, the European Parliament (the "Parliament") adopted the texts of legislative proposals to introduce a legal and ethical framework for AI and a civil liability framework in respect of AI products. The Commission's long-awaited proposal for the regulation of AI is now set to be published in Q2 of 2021.

The Commission's Report and White Paper

The Report: Liability Issues




The White Paper: Regulating "High Risk" AI


  • New laws to regulate "high-risk" AI. Any AI not classed as "high-risk" would be subject to existing laws.

While the White Paper lacks some detail on what "high-risk" AI could mean, the Commission considers AI systems that can affect the rights of an individual or company legally or in a similarly significant way, or that pose risk of injury, death or damage, are the types of applications that would be considered high risk. Three examples are given, namely the use of AI:

  • in recruitment processes;
  • for biometric identification; and
  • for surveillance.

Mandatory legal requirements would apply to "high-risk" applications, such as:

  • Training data: Any data used to train AI systems would have to respect the EU's rules and values.

Consultation on Report and White Paper: Concerns Identified


  • the possible lack of compensation following harm caused by AI.

In general, respondents strongly agreed with the White Paper's proposals to regulate AI. The majority of respondents agreed with the Commission's proposals regarding:

  • the introduction of clear liability and safety rules;

European Parliament's Legislative Proposals in Respect of AI

On 20 October 2020, the Parliament adopted the texts of legislative proposals introducing a legal and ethical framework for AI and a civil liability framework in respect of the development, deployment and use of AI, robotics and related technologies (the "Regulation"). The purpose of the Regulation is to establish a comprehensive and future-proof EU regulatory framework of ethical principles and legal obligations for the development, deployment and use of AI in Europe.

The scope of the Regulation

The Regulation would apply to AI "developed, deployed or used" in Europe, regardless of whether the software, algorithms or data used or produced by such technologies are located outside of the EU or do not have a specific geographical location. The Regulation also regulates not only the developers of AI, but also the deployers and users of those AI products and applications.

The Regulation applies to "artificial intelligence", "robotics" and "related technologies", including software, algorithms and data used or produced by such technologies, developed, deployed or used in the EU.


Liability Framework in Respect of AI Products


The Regulation would introduce:

  • a strict liability regime for "high-risk AI systems", defined as AI systems with significant potential to cause harm or damage in a manner that is random and goes beyond what can reasonably be expected; and
  • a fault-based liability regime for AI systems that do not constitute "high-risk AI systems".


What Lies Ahead in 2021?

The Commission must now respond to the Parliament's legislative proposals. Respondents' consultative feedback on the Commission's Report and White Paper will form part of a broader stakeholder consultation process that will contribute to the Commission's preparation of regulatory options. Following detailed analysis of respondents' feedback and the carrying-out of an impact assessment, the Commission is expected to present an AI regulatory proposal in Q2 of 2021.

Once published, the other EU institutions will review the Commission's proposal and make changes. The European Parliament has already indicated that it will be looking for a broader scope, potentially legislating beyond only "high-risk" AI applications, whereas the Member States appear to be more aligned with the Commission's approach in the White Paper.

Originally Published by Arthur Cox, March 2021
