10.6092/issn.1561-8048/18611
This paper aims to describe and motivate the author’s perspective on the issues posed by robotics and Artificial Intelligence, exploring the significance of the Fundamental Rights approach to AI. The author believes both aspects are essential for understanding robotics, work empowerment, and the environment. The Fundamental Rights approach helps concentrate the attention on the issue of the environment, intended as the social environment, which is strictly linked to legal sustainability.
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Massimiliano Delfino
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Italian Labour Law e-Journal
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Artificial Intelligence, Robotics and Fundamental Rights
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ILLeJ
Massimiliano Delfino
2023/12/14
10.6092/issn.1561-8048/18611
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University of Naples Federico II
1561-8048
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Social environment
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Artificial Intelligence, Robotics and Fundamental Rights
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Artificial Intelligence, Robotics and Fundamental Rights                                         Italian Labour Law e-Journal
Massimiliano Delfino                                                                                    Issue 2, Vol. 16 (2023)
Massimiliano.delfino@unina.it                                                                                 ISSN 1561-8048
                                                                               https://doi.org/10.6092/issn.1561-8048/18611




       Artificial Intelligence, Robotics and Fundamental
                               Rights
                                             Massimiliano Delfino*

1. Introduction. 2. Robots et similia: the legal implications and the link with AI. 3. The two
proposals for EU regulation. 4. The Definitions and their Relevance. 5. The issue of applying
the Nice Charter. 6. Fundamental rights and AI: the responsibilities of the persons.


                                                            Abstract

    This paper aims to describe and motivate the author’s perspective on the issues posed by robotics
    and Artificial Intelligence, exploring the significance of the Fundamental Rights approach to AI.
    The author believes both aspects are essential for understanding robotics, work empowerment,
    and the environment. The Fundamental Rights approach helps concentrate the attention on the
    issue of the environment, intended as the social environment, which is strictly linked to legal
    sustainability.

    Keyword: AI; Fundamental Rights; Robotics; EU Regulations; Social Environment.


1. Introduction.

   The topic of robotics and work empowerment is crucial in current labour law. Moreover,
this subject allows me to face the present and, above all, the future of our subject matter
since this topic has yet to be well-established, especially with the rise of Artificial Intelligence
(AI) enhanced robotics.1 The paper presents a point of view on this complex matter from a
legal perspective. First, I choose the fundamental rights approach since examining the
applicability and adaptability of labour law legislation to robotics is secondary to analysing

* Full Professor of Labour Law, University of Naples Federico II. This study was supported by the ROOTS
(“gReen sOft rOboTicS”) and AURORA (“sustAinable aUgmented pRoducts for spORts and sAfety”)
projects. ROOTS and AURORA are part of the MICS (Made in Italy-Circular and Sustainable) project and
received funding from the European Union Next-Generation EU (PIANO NAZIONALE DI RIPRESA E
RESILIENZA (PNRR)-MISSIONE 4 COMPONENTE 2, INVESTIMENTO 1.3-D.D. 1551.11-10-2022,
PE00000004). This manuscript reflects only the authors’ views and opinions; neither the European Union nor
the European Commission can be considered responsible for them. This essay has been submitted to a double-
blind peer review.
1 On AI, see Boden M. A., L’intelligenza artificiale, Il Mulino, Bologna, 2019; Borelli S., Brino V., Faleri C.,

Lazzeroni L., Tebano L. Zappalà L., Lavoro e tecnologie, Giappichelli, Turin, 2022; Peruzzi M., Intelligenza e lavoro.
Uno studio su poteri datoriali e tecniche di tutela, Giappichelli, Turin, 2023. On the interactions between robotics and
work, see, inter alia, Maio V., Il diritto del lavoro e le nuove sfide della rivoluzione robotica, in Argomenti di diritti del lavoro,
2018, 1414 ff.
 Massimiliano Delfino                                                    Italian Labour Law e-Journal
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                                                                                Section: Miscellaneous




the issue of fundamental rights in that field, such as the respect for private and family life
and freedom of expression and information, the right to privacy, the right to non-
discrimination and the principle of equality between women and men. Therefore, I intend
the environment as the social environment where robotics operate. Second, it is worth
reminding that robotics et similia are linked to the AI issue since systems based on AI can be
easily divided into two types: 1) software operating in the virtual world (vocal assistants,
search engines, etc.) and 2) software that can incorporate AI in hardware devices, such as
robots and exoskeletons, which are the devices we are interested in this context.
   This contribution deals with the issues of AI and the fundamental rights approach to AI.
In a broader sense, both are essential to understanding robotics, work empowerment and
the environment. Moreover, the Fundamental Rights approach deals with the issue of the
environment, intended as the social environment, strictly linked to legal sustainability.


2. Robots et similia: the legal implications and the link with AI.

    The need for “laws of robotics” to ensure the peaceful coexistence of humans and robots
on Earth comes from the process of robotisation. Robots are part of everyday life (including
in areas such as transportation, medical care, education, and agriculture). They assist humans,
facilitating tasks that, on their own, they could not easily do. Considering the need to regulate
new phenomena that increasingly involve robots acting independently, the European
Parliament adopted the Resolution of 16 February 2017, making recommendations to the
Commission concerning the Civil Law Rules on Robotics, namely the civil liability profiles
for any damage caused by “autonomously thinking” robots. Robotisation processes,
however, can also be considered as having a significant impact on the organisation and labour
market, concerning which the Resolution highlights the problem of the lack of skills to be
filled, the need to monitor job losses, the need to ensure respect for fundamental rights in
the workplace, and the levels of health and safety in the working environment through the
transfer of some dangerous and harmful tasks from humans to robots, but also of the risks
of deterioration caused by the new threats due to the increasing number of human-robot
interactions.
    A confirmation derives from this resolution. In one or two points, the EU Parliament
stresses the link between Robotics and AI: “A comprehensive Union system of registration
of advanced robots should be introduced within the Union’s internal market where relevant
and necessary for specific categories of robots, and calls on the Commission to establish
criteria for the classification of robots that would need to be registered; in this context, calls
on the Commission to investigate whether it would be desirable for the registration system
and the register to be managed by a designated EU Agency for Robotics and Artificial
Intelligence” (paragraph 2); the Parliament asks the Commission to consider the designation
of such an Agency “to provide the technical, ethical and regulatory expertise needed to
support the relevant public actors, at both Union and Member State level, in their efforts to
ensure a timely, ethical and well-informed response to the new opportunities and challenges


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    Massimiliano Delfino                                                                          Italian Labour Law e-Journal
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… arising from technological developments in robotics, such as in the transport sector”
(paragraph 16).
    The European Parliament “notes the great potential of robotics for the improvement of
safety at work by transferring several hazardous and harmful tasks from humans to robots”,
but also “their potential for creating a set of new risks owing to the increasing number of
human-robot interactions at the workplace; underlines in this regard the importance of
applying strict and forward-looking rules for human-robot interactions to guarantee health,
safety and the respect of fundamental rights at the workplace”. For that reason, in the annexe
to the resolution, you can find some recommendations, such as the Code of ethical conduct
for robotic engineers, where it is underlined that “robotics research activities should respect
fundamental rights and be conducted in the interests of the well-being and self-determination
of the individual and society at large in their design, implementation, dissemination and use”.
In other words, human dignity and physical and psychological autonomy are always to be
respected.
    Consider, for instance, robots used in surgery as support for doctors. Although this
technology is now widespread in medicine, there is still little guidance on managing risk and
liability during surgery, the doctor’s autonomy in conducting the action, the criteria for
verifying diligence, and the accuracy required in using a robot.
    A following Resolution was passed by the EU Parliament in 2020,2 which is interesting
from many points of view. It highlights the connection between the risk of using AI and
other devices with the violation of fundamental rights by saying “that artificial intelligence,
robotics and related technologies should be considered high-risk when their development,
deployment and use entail a significant risk of causing injury or harm to individuals or society,
in breach of fundamental rights and safety rules as laid down in Union law” (paragraph 14).
This approach is confirmed by Article 4, lett. e, of the proposal for a regulation on ethical
principles for the development, deployment and use of AI, robotics and related technologies
annexed to the resolution: “ ‘high risk’ means a significant risk entailed by the development,
deployment and use of AI, robotics and related technologies to cause injury or harm to
individuals or society in breach of fundamental rights and safety rules as laid down in Union
law, considering their specific use or purpose, the sector where they are developed, deployed
or used and the severity of injury or harm that can be expected to occur.”3 Under this
proposal, “any artificial intelligence, robotics and related technologies, including software,
algorithms and data used or produced by such technologies, shall be developed, deployed
and used in the Union in accordance with Union law and in full respect of human dignity,
autonomy and safety and other fundamental rights set out in the Charter” (Article 1,
paragraph 1).


2 P9_TA (2023)0236 Artificial Intelligence Act Amendments adopted by the European Parliament on 14 June 2023 on the
proposal for a regulation of the European Parliament and of the Council on laying down harmonised rules on artificial intelligence
(Artificial Intelligence Act) and amending certain Union legislative acts (COM(2021)0206 – C9-0146/2021 –
2021/0106(COD).
3 European Parliament, “Robotics, Artificial Intelligence, and the Fundamental Rights Approach to AI”, European

Parliamentary Research Service, European Parliament resolution of 20 October 2020 with recommendations
to the Commission on a framework of ethical aspects of artificial intelligence, robotics and related technologies.

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    Massimiliano Delfino                                                             Italian Labour Law e-Journal
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   According to the proposal for a regulation on ethical principles annexed to the 2020
resolution, AI comprises two main areas of interest: the technical area in a broad sense
(engineering, robotics, computer science, etc.) and the ethical area, including the proper
ethics and the legal aspects of AI, which are different starting from the binding force of legal
elements, which is not typical of the ethical aspects. This difference is more unclear in other
sources (passed or not) regulating AI, such as the AI Act, where those notions are pretty
confused. However, it is more evident in the Whereas and Recitals (the preamble) than in
the Articles of the AI Act.


3. The two proposals for EU regulation.

   As said, this risk-based social environment approach is crucial4 and like that used in the
two proposals for EU regulation, which have more chances to be passed and provide for a
more robust intervention of the EU in the field of Robotics and AI after reminding that the
2020 proposal on robotics was substantially absorbed in the 2021 proposal for a regulation
on AI. The legislative proposals under attention (AI Act5 and regulation on the market for
digital services)6 are different, even though the legal basis is similar. Both are based on
Article114 TFEU, which provides for the adoption of measures aimed at ensuring the
establishment and functioning of the internal market, with the objective, for the regulation
regarding AI, of “ensuring the proper functioning of the internal market by establishing
harmonised rules, in particular concerning the development the placing on the Union market
and the use of products and services using AI technologies or provided as stand-alone AI
systems” and, for the proposal on the services market, to “ensure the smooth functioning of
the internal market, in particular about the provision of cross-border digital services (more
specifically, intermediary services)”. In addition, considering that the first proposal “contains
certain specific rules on the protection of natural persons concerning the processing of
personal data, in particular restrictions on the use of AI systems for ‘real-time’ remote
biometric identification in publicly accessible areas for law enforcement purposes”, it is

4
  This approach has been recently used by the US Administration in the Executive Order on the Safe, Secure, and
Trustworthy Development and Use of Artificial Intelligence, delivered by President Biden on October 30, 2023. The
references to workers and the risk-based approach are many, starting from the eight guiding principles and
priorities contained therein, especially n° d, which states as follows. “The responsible development and use of
AI require a commitment to supporting American workers. As AI creates new jobs and industries, all workers
need a seat at the table, including through collective bargaining, to ensure that they benefit from these
opportunities. My Administration will seek to adapt job training and education to support a diverse workforce
and help provide access to opportunities that AI creates. In the workplace itself, AI should not be deployed in
ways that undermine rights, worsen job quality, encourage undue worker surveillance, lessen market
competition, introduce new health and safety risks, or cause harmful labor-force disruptions. The critical next
steps in AI development should be built on the views of workers, labor unions, educators, and employers to
support responsible uses of AI that improve workers’ lives, positively augment human work, and help all people
safely enjoy the gains and opportunities from technological innovation”.
5 Proposal for a Regulation of the European Parliament and the Council laying down harmonised rules on

Artificial Intelligence (Artificial Intelligence Act) and amening certain Union legislative Acts, 21.4.2021, COM
(2021) 206 final.
6 Proposal for a Regulation of the European Parliament and the Council on a Single Market For Digital Services

(Digital Services Act) and amending Directive 2000/31/EC, 15.12.2021, COM (2020) 825 final.

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    Massimiliano Delfino                                                                    Italian Labour Law e-Journal
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appropriate to base it, as far as those specific rules are concerned, on Article 16 TFEU, which
precisely involves the protection of personal data.
    The choice of regulation as the source of the law is justified by the need for uniform
application of the new rules (i.e., the definition of AI), the prohibition of certain harmful
practices permitted by AI and the classification of specific AI systems. The direct applicability
of regulation, following Article 288 TFEU, will reduce legal fragmentation and facilitate the
development of a single market for AI systems. This will be achieved by introducing a
classification for high-risk AI systems and obligations for providers and users of such
systems. A similar objective characterises the proposal for a regulation on the market for
digital services “aimed at ensuring harmonised conditions to allow the development of
innovative cross-border services in the Union by addressing and preventing the emergence
of obstacles to such economic activity arising from the different ways in which national laws
are drafted, taking into account that many Member States have legislated or intend to legislate
on issues such as the removal of illegal content online, the duty of care, notice and action
procedures and transparency”.
    The AI regulation (proposal) confirms the strict connection between robotics and AI
since it explicitly refers to the 2017 Resolution on Ethical Aspects of Artificial Intelligence,
Robotics and Related Technologies, which is considered one of the bases of AI regulation.
    The proposals for a regulation contain some provisions on fundamental rights, even
though they differ, at least considering the first version of the AI Act. Both referred to
fundamental rights and/or the Nice Charter in their preambles and recitals. Nevertheless,
only the proposal for a regulation on digital market services refers to special fundamental
rights in the body of the text. In particular, Article 1(2) aims to establish uniform rules for a
safe and reliable online space, protecting fundamental rights as enshrined in the Charter;
Article 8 emphasises the need for territorial scope limitations in countering illegal content,
considering applicable Union and national laws and international principles; Article 12
mandates that intermediary service providers inform users of restrictions on service use,
requiring them to act diligently and proportionately, respecting the fundamental rights of all
parties involved; Article 26 requires extensive online platforms to identify and assess systemic
risks, including those affecting fundamental rights, such as privacy, freedom of expression,
non-discrimination, and children’s rights; Article 27(3) allows the Commission to issue
guidelines on mitigation measures, considering their impact on fundamental rights. The
regulation also addresses crisis protocols, specifically in extraordinary circumstances
impacting public security or health while safeguarding fundamental rights. Also, this must be
partially reviewed after the amendments passed by the European Parliament on 14 June
2023,7 where a more significant role for the fundamental rights approach has been
recognised. This is evident in new Article 1, paragraph 1: “The purpose of this Regulation is
to promote the uptake of human-centric and trustworthy artificial intelligence and to ensure
a high level of protection of health, safety, fundamental rights, democracy and the rule of

7
  See Nikolinakos Nikos Th., The European Parliament’s 2020 Resolution: Proposal for a Regulation on Ethical Principles
for the Development, Deployment and Use of Artificial Intelligence, Robotics and Related Technologies, EU Policy and Legal
Framework for Artificial Intelligence, Robotics and Related Technologies - The AI Act, Springer International Publishing,
Cham, 2023, 281-306.

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law, and the environment from harmful effects of artificial intelligence systems in the Union
while supporting innovation”. Another example is clear as well. According to Article 3,
paragraph 1, n. 44, a “‘serious incident’ means any incident or malfunctioning of an AI system
that directly or indirectly leads, might have led to or might lead to any of the following”,
among which you can find “the death of a person or serious damage to a person’s health”
but also “a breach of fundamental rights protected under Union law”. As you can see, the
death of a person is as severe as the breach of fundamental rights, and this is quite innovative.
    The effectiveness of social rights in the AI age depends on the applicability of the sources
that contain them. Thus, at the supranational level and beyond, the question of the scope of
the Charter of Fundamental Rights is decisive.8 The first question is whether the Charter
applies to the above-proposed regulations. The reference is to the rules of the Charter on
regulated profiles by European secondary sources of law. The problem mainly concerns the
proposal for a regulation on services in the digital market because the other does not contain
any reference to the rules of the Charter, either expressed or implied. For the first time, a
legislative act of general scope, binding and directly applicable in the Member States of the
Union, makes express reference to the Charter and its rules in at least two cases. Indeed,
declaring that digital service providers must act “with due regard to the rights and legitimate
interests of all parties involved, including the applicable fundamental rights of the recipients
of the service enshrined in the Charter” and that online platforms must identify systemic
risks, including “any adverse effects on the exercise of fundamental rights to respect for
private and family life and to freedom of expression and information, the right to non-
discrimination and the rights of the child, as laid down respectively in Articles 7, 11, 21 and
24 of the Charter”, it seems to me that it makes the fundamental rights contained in the
Charter applicable to internal systems, concerning digital providers and online platforms.


4. The Definitions and their Relevance.

   Some of the definitions contained in Article 2 are of the utmost importance in order to
understand the attitude of the Directive towards the involvement of employees in general
and participation in particular.
   First, by defining ‘participating companies’ as the companies directly participating in the
establishing of an SE (Article 2 lett. b), the Directive confirms once again its better
disposition for the plurality of actors that characterizes mergers and holding companies and
joint subsidiaries.
   Second, by understanding ‘employees’ representatives’ as the employees’ representatives
provided for by national law and/or practice (Article 2(e) Dir.), the Directive, as usual for
EU Law when it comes to workers’ representation, is careful not to interfere with the choice
of each Member State as far as their definition is concerned, respectful as it is of their
industrial relations and statutory systems. This is a crucial point of reflection for us in the


8See Delfino M., Article 51 Charter of Fundamental Rights of the European Union, in Ales E., Bell M., Deinert O.,
Robin-Olivier S. (eds.), International and European Labour Law, Nomos, Baden-Baden, 2018, 234 ff.

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    Massimiliano Delfino                                                                            Italian Labour Law e-Journal
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view of making assumptions on the answer the Court could give to the Bundesarbeitsgericht. In
fact, being each Member State free to choose who are employees representatives, one cannot
claim the German legislation, interpreted as confirming the separate election process for
unions members within the surveillance body of a SE, to be against the Directive.
    Such an interpretation is not challenged by the definition of ‘representative body’ as the
body representative of the employees set up by the agreements referred to in Article 4 or in
accordance with the provisions of the Annex, with the purpose, where applicable, of
exercising participation rights in relation to the SE (Article 2 lett. f). In fact, as we will see
below (par. 4), the representative body is to be understood as “the discussion partner of the
competent organ of the SE”, thus recalling the betriebliche Mitbestimmung as opposed to the
unternehmerische Mitbestimmung if participation is at stake.
    Such an interpretation is confirmed by the definition of ‘participation’, to be understood
as “the influence of the body representative of the employees [betriebliche Mitbestimmung]
and/or the employees’ representatives in the affairs of a company by way of (i) the right to
elect or appoint some of the members of the company’s supervisory or administrative organ,
or (ii) the right to recommend and/or oppose the appointment of some or all of the members
of the company’s supervisory or administrative organ” (unternehmerische Mitbestimmung)
(Article 2(k) Dir.).
    Also in this case, the Directive is not interfering with the freedom of each Member State
to decide by its own national legislation who will be the representative of the employees and
how they will be appointed (even by a separate election process for unions members). The
qualitative aspect of employees representation is totally up to Member States, and this applies
to any form of ‘involvement of employees’, which means any mechanism, including
information, consultation and participation, through which employees’ representatives may
exercise an influence on decisions to be taken within the company (Article 2(h) Dir.).
    As far as participation is concerned, the Directive adopts a clear quantitative approach
with reference to the limitations Member States (and the parties of the agreement, above all)
will face. This is confirmed by the definition of ‘reduction of participation rights’ in terms of
“a proportion of members of the organs of the SE within the meaning of Article 2(k), which
is lower than the highest proportion existing within the participating companies” (Article
3(4) Dir.). Should the result of the negotiations lead to such a reduction, the special
negotiating body shall take decisions by qualified instead of by an absolute majority of its
members and employees of the SE.


5. The issue of applying the Nice Charter.

   It is necessary to wait and see whether the two regulations will be passed and how the
Court of Justice will decide on them without undermining the role of the doctrine. In this
regard, a judgment of the Court of Justice of 17 March 2021, KO, C-652/19,9 weakens the


9 Delfino M., Continuity and discontinuity in the scope of social rights in the recent case law of the Court of Justice, in Diritti
lavori mercati (international), 2023, 1.

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certainties reached up to that point. After recalling that “the provisions of the Charter apply,
under Art. 51(1) thereof, to the Member States, only when they are implementing Union law,
Article 6(1) TEU and Article 51(2) of the Charter, make it clear that the Charter does not
extend the field of application of Union law beyond the powers of the European Union and
does not establish any new power or task for the EU, or modify powers and tasks as defined
in the Treaties. The Court is, therefore, called upon to interpret, in the light of the Charter,
the law of the EU within the limits of the powers conferred on it”; it emphasises that “for it
to be found that Directive 98/59 and, consequently, the Charter, apply to the main
proceedings, that directive must impose a specific obligation in respect of the situation at
issue in those proceedings, which has been implemented by the provisions of Italian law
concerned”.
    However, “such an obligation is not apparent from the provisions of Directive 98/59.
The main objective of that directive is to make collective redundancies subject to prior
consultation with the workers’ representatives. Prior notification to the competent public
authority,” and “Directive 98/59 provides for only a partial harmonisation of the rules for
the protection of workers in the event of collective redundancies, that is to say,
harmonisation of the procedure to be followed when such redundancies are to be made” is
ensured. In particular, “the means of protection to be afforded to a worker who has been
unlawfully dismissed as part of collective redundancy, following a failure to comply with the
criteria based on which the employer is required to determine the workers to be dismissed,
are manifestly unrelated to the notification and consultation obligations arising from
Directive 98/59. Neither those means nor those selection criteria fall within the scope of
that directive. Consequently, they remain within the Member States’ competence”.
    These declarations of the Court of Justice contrast previous case law (from Akeberg to
Florescu via Poclava) that had yet to go into detail. This source has been transposed into
national law, and the implementation of Union law allows the Charter of Fundamental Rights
rules to enter the Member States’ legal systems. In addition to a potential new direction, there
is an inconsistency in the reasoning of the recent Luxembourg Court ruling. The argument
needs to be differentiated on a case-by-case basis. Article 20 CFREU focuses on equality
before the law and does not deal with dismissals, while Article 30 deals with protection
against unjustified dismissals. Therefore, on the one hand, implementing the Directive on
Collective Redundancies cannot allow the application of Article 20 in domestic law. On the
other hand, the application of Article 30 would have been irrelevant here. However, the
Court of Justice’s interpretation will likely weaken the Charter of Fundamental Rights and
the application of social rights in domestic law. The Court of Justice’s partial revirément also
concerns the Italian Constitutional Court, which, in Judgment 194 of 2018, had stood by the
Court of Justice’s previous positions.
    On the EU law profiles, the Constitutional Court argued as follows.
    i) Under Article 51 CFREU, the Court of Justice of the European Union has
consistently held that the provisions of the Nice Charter apply to the Member States when
they act within the scope of Union law. This is clear to the Constitutional Court, according
to which “for the Charter of Fundamental Rights of the European Union to be invoked in a
case of constitutional legitimacy, the case subject to domestic legislation must be governed

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     Massimiliano Delfino                                                        Italian Labour Law e-Journal
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by European law – in so far as it is inherent in acts of the Union, in national acts and conduct
which give effect to EU law – and not by national rules alone which have no connection
with that law” (judgment no. 80 of 2011). In the present case, there is no evidence to suggest
that the censured regulation of Article 3(1) of Legislative Decree No. 23 of 2015 was adopted
in implementing the European Union law.
    ii) For the applicability of the CFREU, Article 3(1) of Legislative Decree No. 23 of 2015
should fall within the scope of a rule of Union law other than those of the Charter itself.
However, the mere fact that Article 3(1) of Legislative Decree No. 23 of 2015 falls within an
area where the Union has competence within the meaning of Article 153(2)(d) of the Treaty
on the Functioning of the EU cannot entail the applicability of the Charter given that, as
regards the regulation of individual dismissals, the Union has not exercised that competence.
Moreover, it cannot be considered that the legislation censured was adopted in implementing
Directive 98/59/EC (on collective redundancies) since Art. 3(1) of Legislative Decree No
23 of 2015 regulates individual redundancies.
    iii) To argue the existence of a ‘European case’, the respondent claimed that they would
fall within the scope of the Union’s employment policy and the measures adopted in
response to the Council’s recommendations. Those recommendations provided for in
Article 148(4) TFEU fall within the Council’s discretion and have no binding force, so this
is the implicit reasoning conducted by the Constitutional Court; they cannot be regarded as
Union law. This is also valid beyond labour law.10
    The immediate direct effect of the regulations (AI and digital market services) means that,
if passed, they will apply immediately in such legal systems and be effective against both
States and individuals without the need for further action. In addition, regulations can entitle
individuals to rights and obligations and, therefore, be invoked by individuals before national
courts and used as a reference in relations with other individuals, Member States and Union
institutions. Regarding the regulations, we cannot speak of the ‘implementation of Union
law’, necessary according to Article 51 CDFEU to make the rules of the Charter operational
in domestic legal systems. However, since the Regulation has a direct horizontal effect and
its implementation is unnecessary, it is usually a ‘solid bridge’ between the Charter and the
national legal systems. It thus allows the entrance of the rules (at least those expressly
mentioned) in domestic law. In addition, the regulation also strikes a balance between
freedoms and fundamental rights.


6. Fundamental rights and AI: the responsibilities of the persons.

   The connection between Robotics, AI and fundamental rights is complicated, especially
regarding the proposal for the AI Act. In the proposal for a regulation of digital market

10The Constitutional Court, in its judgment 149 of 2022, stated that there is no doubt that the EU secondary
law governs the matter of copyright protection, in particular by Directive 2001/29/EC, and this implies that
the domestic regulation falls within the scope of implementation of EU law within the meaning of Article 51
CFREU, with the consequent obligation to respect the rights recognised by the Charter, including Article 50
CFREU.

https://doi.org/10.6092/issn.1561-8048/18611                                                                 43
 Massimiliano Delfino                                                    Italian Labour Law e-Journal
                                                                                Issue 2, Vol. 16 (2023)
                                                                                Section: Miscellaneous




services, there will not be any problems in applying the Charter of Fundamental Rights since
there are some specific references to the provision of the Charter itself, which enter into
force into the domestic legal systems thanks to the regulation. On the contrary, some
questions could arise for AI regulation. The reference to the Charter in the 2021 proposal
for an AI Act was more indirect before the amendments passed by the European Parliament
in June 2023. Article 7.1 provided that “the Commission is empowered to adopt delegated
acts … to update the list in Annex III by adding high-risk AI systems where both of the
following conditions are fulfilled”: a) the AI systems are intended to be used in the areas
listed in Annex III and, above all, b) “the AI systems pose a risk of harm to the health and
safety or a risk of adverse impact on fundamental rights, that is, in respect of its severity and
probability of occurrence, equivalent to or greater than the risk of harm or of adverse impact
posed by the high-risk AI systems”. Indeed, according to Article 7, paragraph 2, “when
assessing for the purposes of paragraph 1 whether an AI system poses a risk of harm to the
health and safety or a risk of adverse impact on fundamental rights that is equivalent to or
greater than the risk of harm posed by the high-risk AI systems already referred to in Annex
III, the Commission shall take into account” among other criteria “the extent to which the
use of an AI system has already caused harm to the health and safety or adverse impact on
the fundamental rights or has given rise to significant concerns about the materialisation of
such harm or adverse impact, as demonstrated by reports or documented allegations
submitted to competent national authorities”.
    Thus, it did not seem possible that the Charter of Fundamental Rights applied to domestic
legal systems. Rights and principles in the Charter could only be used to understand whether
AI systems are at risk of hurting them to modify the list of high-risk AI systems provided in
Annex III. The fundamental rights (especially those provided in the Charter) only operated
at the EU level. Therefore, the AI Act could not be considered a solid bridge to make the
fundamental rights of the Charter enter into the national legal systems. Things could change
after the amendments adopted by the European Parliament on 14 June 2023. The Parliament
has proposed to add Article 4 α, according to which “all operators falling under this
Regulation shall make their best efforts to develop and use AI systems or foundation models
in accordance with the … general principles establishing a high-level framework that
promotes a coherent human-centric European approach to ethical and trustworthy AI, which
is fully in line with the Charter as well as the values on which the Union is founded”. This
provision and the general principles contained therein make the rights of the Charter operate
in the domestic legal systems. Indeed, a) ‘human agency and oversight’ means that AI systems
shall be developed and used as a tool that serves people, respects human dignity and personal
autonomy, and that is functioning in a way that can be appropriately controlled and overseen
by humans; b) ‘technical robustness and safety’ means that AI systems shall be developed
and used in a way to minimize unintended and unexpected harm as well as being robust in
case of unintended problems and being resilient against attempts to alter the use or
performance of the AI system so as to allow unlawful use by malicious third parties; c)
‘privacy and data governance’ means that AI systems shall be developed and used in
compliance with existing privacy and data protection rules, while processing data that meets
high standards in terms of quality and integrity; d) ‘transparency’ means that AI systems shall

https://doi.org/10.6092/issn.1561-8048/18611                                                         44
     Massimiliano Delfino                                                                         Italian Labour Law e-Journal
                                                                                                         Issue 2, Vol. 16 (2023)
                                                                                                         Section: Miscellaneous




be developed and used in a way that allows appropriate traceability and explainability, while
making humans aware that they interact with an AI system as well as duly informing users of
the capabilities and limitations of that AI system and affected persons about their rights; e)
‘diversity, non-discrimination and fairness’ means that AI systems shall be developed and
used in a way that includes diverse actors and promotes equal access, gender equality and
cultural diversity while avoiding discriminatory impacts and unfair biases that are prohibited
by Union or national law; f) ‘social and environmental well-being’ means that AI systems
shall be developed and used in a sustainable and environmentally friendly manner as well as
in a way to benefit all human beings, while monitoring and assessing the long-term impacts
on the individual themselves, on the society and the democracy.11
   A couple of examples of the applicability of social rights can be made. Article 21 CFREU
prohibits “any discrimination based on any ground such as sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual orientation”,
while Article 23 declares that “equality between women and men must be ensured in all areas,
including employment, work and pay”. Suppose this version of the AI Act is passed. In that
case, these provisions will enter into force in domestic jurisdictions, and human beings must
respect them since robots and algorithms cannot be responsible for violating fundamental
rights.
   The problem is to understand who is responsible for respecting those rights. The
amendments to the AI regulation clearly show that the provisions of the regulation and the
rights of the Charter do not apply to AI in general but to individuals, not robots or AI
systems. However, the AI act uses different words (operators, users, deployers, providers) in
other contexts.
   A good example is once again Article 4 α, according to which “all operators falling under
this Regulation shall do their best to develop and use AI systems or foundation models.”12
Moreover, the amendments to the AI regulation clearly define the operator, i.e. “the provider,
the deployer, the authorised representative, the importer and the distributor.”13
   Some other times, reference is made only to the user or, in the most recent version of the
AI Act, to the deployer, which is “any natural or legal person, public authority, agency, or
other body using an AI system under its authority, except where the AI system is used in the
course of a personal, non-professional activity” (Article 3). This is also true for the scope of
application of the Act, i.e. the deployers (not the users anymore) of AI systems that have
their place of establishment or are located within the Union (Article 2, point cc).

11  European Parliament. Fundamental Rights and Artificial Intelligence in Robotics: A Comprehensive Approach,
https://www.europarl.europa.eu/doceo/document/TA-9-2023-0236_EN.html. Aloisi A., Gramano E.,
Artificial intelligence is watching you at work. Digital surveillance, Employee monitoring and regulatory issues in the EU context,
in Comparative Labor Law & Policy Journal, 2019, vol. 41, 1, 95; Cappelli P., The consequences of AI-based technologies
for jobs, R&I Paper series, 2020, 4; Durante M., Intelligenza artificiale. Applicazioni giuridiche, Utet, Torino, 2007; Frey
C.B., Osborne M. A., The future of employment: how susceptible are jobs to computerisation? 2013,
https://www.oxfordmartin.ox.ac.uk/downloads/academic/future-of-employment.pdf
12 Following the “general principles establishing a high-level framework that promotes a coherent human-

centric European approach to ethical and trustworthy Artificial Intelligence, which is fully in line with the
Charter as well as the values on which the Union is founded.”
13 Article, 3, paragraph 1, point 8 as amended by the European Parliament.



https://doi.org/10.6092/issn.1561-8048/18611                                                                                    45
 Massimiliano Delfino                                                          Italian Labour Law e-Journal
                                                                                      Issue 2, Vol. 16 (2023)
                                                                                      Section: Miscellaneous




    In other cases, the provisions refer to the “importers and distributors of AI systems as
well as authorised representatives of providers of AI systems, where such importers,
distributors or authorised representatives have their establishment or are located in the
Union” (Article 2, point cb).
    In the latest version of the Act, the term user has almost disappeared. In a few cases, it is
referred to the end user. An example can be found in Article 4 α, paragraph 1(d):
“‘transparency’ means that AI systems shall be developed and used in a way that allows
appropriate traceability and explainability while making humans aware that they
communicate or interact with an AI system as well as duly informing users of the capabilities
and limitations of that AI system and affected persons about their rights”.
    In other examples, the provisions are dedicated to the providers and users. See Article 13,
paragraph 1: “High-risk AI systems shall be designed and developed in such a way to ensure
that their operation is sufficiently transparent to enable providers and users” to understand
the system’s functioning reasonably.
    The problem of terminology is crucial. One of the most crucial aspects is recognising the
personal scope of the application of Fundamental Rights, which, as I have underlined, differs
depending on the provisions of the AI Act. All the companies, undertakings and individuals
operating in this field must be conscious of that and apply the rights and principles of the
Charter depending on whether they are users, deployers, providers, importers, distributors
or authorised representatives of AI systems.




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https://doi.org/10.6092/issn.1561-8048/18611                                                               46
 Massimiliano Delfino                                                              Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 16 (2023)
                                                                                          Section: Miscellaneous




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Copyright © 2023 Massimiliano Delfino. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/18611                                                                   47
