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EU Artificial Intelligence Regulation: how will it affect the tech sector?

The European Commission presented on 21 April its Proposal for a Regulation on a European Approach for Artificial Intelligence. This EU Artificial Intelligence Regulation, a key element of the 2020 Strategy on Europe’s Digital Future, aims at creating the first-ever legal framework for artificial intelligence, fostering innovation, and maximizing the societal benefits of AI while ensuring the safety of EU citizens by guaranteeing the trustworthiness of AI systems. This article briefly presents measures included in the proposal and provides Dr2 Consultants’ analysis of the potential impact on the tech sector.

Ensuring the safety and trustworthiness of artificial intelligence systems

To ensure the safety and trustworthiness of artificial intelligence systems and applications put on the European market, the European Commission adopted a risk-based approach in its proposal. Depending on the risk posed by a system or its application, different conditions will apply.

Unacceptable risk

The proposal for an EU Artificial Intelligence Regulation lists a number of AI systems or applications that pose an unacceptable risk to the safety, livelihood and rights of people, and that are banned altogether from being commercialized in the EU. Those notably include AI systems or applications manipulating human behavior to circumvent users’ free will, but the wording used by the Commission seems vague and it is unclear how systems will be assessed to determine whether they fall into the banned category.

It also concerns AI systems or applications allowing social scoring by governments (directly targeting systems already introduced in China), and real-time biometric recognition systems used by law enforcement, unless their use is necessary in certain specific cases (such kidnapping, terrorist attack or criminal search).

EU Artificial Intelligence Regulation - Unacceptable Risk

High-Risk

One step down on the risk scale, the proposal lists artificial intelligence systems with “high-risk” use, which are systems with a variety of sensitive applications, from transport (such as self-driving vehicles), to essential private and public services (such as credit scoring) to education (e.g. exam scoring). The proposal also targets public applications of AI, especially in the fields of law enforcement, migration and border control management, and administration of justice.

High-risk systems will be allowed to be commercialized and used in the EU only after complying with conformity assessment procedures, to ensure that the systems or their application respect the EU standards. Although the proposal plans for national authorities to conduct checks to ensure that systems are compliant, the text still intends for many applications to be evaluated through self-assessment, meaning that the AI providers will assess themselves if they meet the conformity criteria set by the EU. Those criteria notably include: having in place adequate risk assessment and mitigation systems, using high quality datasets to avoid algorithmic bias, and ensuring appropriate human oversight. This flexibility is likely to be positively welcomed by the tech industry, but MEPs have already warned that they would support stricter compliance rules.

EU-Artificial-Intelligence-Regulation-High-Risk

Limited and minimal risk

Systems that do not fall under the “unacceptable” or “high-risk” categories are considered of limited or minimal risk, which covers the majority of artificial intelligence systems widely used in the EU at the moment. AI systems of limited risk will need to respect transparency obligations, meaning that users must be informed that they are interacting with an AI system. Systems posing minimal risks, such as spam filters or AI-enabled video games, can be commercialized and used freely.

The application of the EU Artificial Intelligence Regulation will be overseen by a newly-created body, the European Artificial Intelligence Board.

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Fostering European excellence in artificial intelligence

Next to measures to secure AI systems, the proposal also includes a few measures to promote innovation in AI in the EU. The Artificial Intelligence Regulation notably includes an update of the 2018 Coordinated Plan on AI, which sets out a series of actions to be taken by EU Member States and provides funding instruments, financed by the Digital Europe, Horizon Europe and Cohesion programmes, to accelerate investments in AI.

The proposal also targets SMEs to facilitate their access to testing and experimentation facilities as well as digital innovation hubs.

Next steps for the EU Artificial Intelligence Regulation and potential impact on the tech sector

The European Parliament and the Council of the EU, representing Member States, will now both study the proposal and adopt their respective positions, before entering into negotiations. The negotiations are likely to be stormy, considering their diverging positions. Indeed, MEPs support even stricter rules, notably promoting additional applications to fall under the banned category. On the other hand, it can be expected that Member States will adopt a position demanding more leeway on security and law enforcement applications, especially considering that national security remains a national prerogative of Member States.

As the proposal is likely to be reworded and amended during the negotiation process, the impact it will have on the tech sector is not easy to evaluate. However, if the proposal were to be accepted as is, the first impact for the tech sector would be that companies commercializing banned AI systems, or putting on the market high-risk systems that have not gone through the conformity assessment procedure, could be subject to financial penalties of 6% of the company’s total annual turnover. Considering the vague wording used by the Commission, it is difficult to understand how this law will be practically enforced.

There is also a worry from the industry side that this regulation will overburden a sector composed mainly of SMEs and start-ups, without a sufficient support framework to create balance, considering that measures included in the proposal to support innovation remain limited.

There is a strong interest of big tech companies in AI technologies and systems developed by small startups. In the past five years, big tech companies have purchased over 60 AI startups creating systems that can improve products created by the tech giants.

It remains to be seen how this new Artificial Intelligence Regulation introduced by the EU will affect the AI landscape. Will the measures to foster innovation and support SMEs lead to a multiplication of actors or will the additional regulatory burdens created by the regulation burden startups too much, leaving room only for bigger companies?

Moreover, a risk exists that, as it happened with the General Data Protection Regulation (2016), the implementation and enforcement of the European Artificial Intelligence Regulation at national level will be fragmented, leaving the industry to deal with disparities between Member States and an uncertain legal framework that would hamper the EU Single Market and the economy.

Dr2 Consultants continuously monitors the developments in the discussion on artificial intelligence and supports its clients on these matters. Should you be interested in further information on the AI Regulation and how it could impact your business, you can reach out to Dr2 Consultants at info@dr2consultants.eu or find more information on our website.

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Back to work: EU legislative proposals – 2020 outlook

As the summer recess is coming to an end, the European Commission will start preparing the EU legislative proposals that are still in the pipeline for 2020, according to the work program. As the second semester of the year will be a packed one, it is key to timely prepare input in order to have your priorities heard.

Following our blog on the EU initiatives that were open for feedback over summer, Dr2 Consultants now guides you through the main remaining proposals for 2020 in the transport, sustainability and digital sector. You can find these below in that particular order.

Transport up-to-speed with the new decade

Emerging developments such as the decarbonization of transport, digitalization and the global COVID-19 pandemic have stressed the need to review the Trans-European Transport Network (TEN-T) Regulation. The TEN-T policy aims to develop and implement a Europe-wide infrastructure network linking ports, highways, airports and railways. With the upcoming revision of this EU legislation, the European Commission aims to bring TEN-T up-to-speed with the ongoing green and digital transitions. The Commission is expected to put renewed emphasis on the strengthening of urban nodes, the update of infrastructure requirements, and the alignment of the TEN-T policy with the EU’s environmental policies.

The Commission is currently finalizing the evaluation of the TEN-T Regulation. The different modes of transport are still invited to contribute to dedicated case studies in the course of September. The European Parliament is currently preparing an own-initiative report on the TEN-T policy. The Transport & Tourism committee will discuss the draft report on 3 September. The Commission is expected to publish a roadmap and a public consultation later this year. A legislative proposal is foreseen for summer 2021.

In addition to the TEN-T, the Commission is expected to publish the EU’s Strategy on Sustainable and Smart Mobility. With this strategy, the Commission intends to adopt a comprehensive strategy to reduce transport-related greenhouse gas emissions by 90% by 2050, and to ensure the transport sector is fit for a clean, digital and modern economy. A public consultation has been opened in the summer and is open for feedback until 23 September.

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Green energy and sustainable production

The energy-focused sibling of TEN-T will also be subject to a revision this year. The Trans-European Energy Network (TEN-E) Regulation aims to link European electricity, gas and oil infrastructure into a single network, consisting of nine corridors. TEN-E focus areas are smart grids, electric highways and the cross-border carbon dioxide network. This EU legislation is considered to be instrumental to realize the renewable energy objectives across the Union, for example in stimulating the hydrogen economy. The Commission will come up with a legislative proposal for a revised TEN-E regulation.

European Green Deal Impact Scan

In addition, several EU legislative proposals will be initiated that will have an impact on producers. Proposals that tackle packaging waste, deforestation and industrial emissions are currently in the pipeline. Striving towards a circular economy, the Commission will promote waste reduction by reviewing the Packaging Directive. This may include improved design standards and increased recycled content in packaging materials. Possibly, packaging design standards will also change as a result of the Deforestation Regulation, which could include labelling requirements and verification schemes to increase the transparency of supply chains. Finally, the Industrial Emissions Directive may require additional sectors, such as farms and extractive industries, to implement available sustainable production techniques. Public consultations on the three initiatives are upcoming this year, and the respective legislative proposals are scheduled for 2021.

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Trustworthy AI and shared data spaces

Artificial Intelligence (AI) is increasingly affecting our society. Applications can bring about revolutionary changes in healthcare, governance, research, production and many other areas of our society. On the one hand, opportunities such as the precision of diagnosis, the prevention of car accidents and more efficient farming are promising. On the other hand, AI carries several potential risks, including racial, gender or other discriminatory biases, infringements of our privacy and reduced governance accountability.

Amidst global competition, the European Commission aims to distinguish the EU approach with its emphasis on European values. The EU strategy must embrace opportunities, while protecting citizens from potential harmful impacts. The European approach for trustworthy artificial intelligence will propose ethical requirements for AI, following the general strategy presented in the White Paper, stakeholder consultations and the draft guidelines presented by the High-Level Expert Group on AI in 2018. The initiative will be a review of the draft guidelines, on which stakeholders will be invited to deliver input through the upcoming roadmap.

Another aspect of the EU digital strategy is the regulation of the growing volume of data. Data can give valuable insights that drive innovation in areas such as medicine, mobility and policy-making. The creation of common European data spaces will allow citizens, businesses and organizations to access non-personalized data from different Member States, pooled across different key sectors. European privacy rules (GDPR) and competition law continue to be applied. Although the roadmap has already closed, input can be delivered through the upcoming public consultation. Adoption by the College of Commissioners is expected by the end of 2020.

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Next steps 

Commission proposals on the EU legislative initiatives mentioned above are expected by the end 2020, or in the course of 2021. As the Commission is preparing for a proposal-packed final quarter, it is key to reach out early to have your interests set on the agenda.

Want to know more about the upcoming initiatives, COVID-19, or other files that might affect your business? Please contact Dr2 Consultants to see what we can do for you.

EU consultation on Artificial Intelligence: seizing the business opportunity

With its new ‘Shaping Europe’s Digital Future’ Strategy, the European Data Strategy and a White Paper on Artificial Intelligence, all published on the same day (19 February 2020), the European Commission led by Ursula von der Leyen is fully committed to digitalizing our society. Zeroing in on the AI White Paper, it is clear that the Commission tries to find a delicate balance between building both an ecosystem of excellence that supports the development and uptake of AI and an ecosystem of trust where AI is also regulated and safe for everyone. The European Commission has already undertaken quite some work in defining its approach to AI and in consulting stakeholders. It is now proceeding with an official written consultation, seeking feedback on the White paper through a questionnaire.

While the European Commission has the prerogative to initiate the above ideas and strategies, the European Parliament has not stood still in the past couple of months and has proactively, and extensively, positioned itself and defined its priorities. Most notably, the Parliament’s Legal Affairs Committee (JURI) is working on multiple AI reports, focused on the technology’s ethical aspect, its civil liability regime and intellectual property rights for the development of AI technologies. Furthermore, also the Parliament’s Culture and Education Committee (CULT) is working on its own report on AI applications in education, culture and the audiovisual sector, and a EP Resolution has been drafted on automated decision-making processes and ensuring consumer protection and free movement of goods and services.

 

While the discussion around AI at EU level seemed to have stemmed exclusively from the new Commission’s strong will to act on this issue, since then feedbacks from civil society, NGOs, companies and others, have been highly requested to shape further the future framework.

The latest opportunity for stakeholders to contribute to the discussion is the Commission’s Consultation on the White Paper on Artificial Intelligence, closing on 14 June.

The questionnaire explores certain aspects of the White Paper, including specific actions to build an ecosystem of excellence, options for a regulatory framework for AI and further consultation on the question of safety and liability aspect of AI.

To zoom in on a specific and rather important aspect of the questionnaire for businesses, the Commission is seeking feedback on whether the introduction of new compulsory requirements should be limited to high-risk applications, and whether the current definition and criteria for this risk-based approach is the right way forward. New requirements and standards would regulate aspects such as training data, human oversight and so on. In addition, the European Commission is seeking feedback voluntary labelling for any other AI-powered services that could be qualified as “low-risk”. The intention and content of such voluntary labelling scheme is still fully open for discussion.

There are two key opportunities for businesses here through this process, that should not be overlooked:

First, this should be seen as the perfect opportunity to question, understand, assess and if necessary, improve companies’ practices when developing or using AI in their daily activities. The Commission and Expert Groups have developed various tools such as the White Paper, but also the  assessment list of the Ethics Guidelines for Trustworthy AI., that can guide this type of exercise. Do we allow for human oversight? Does the data we use could lead to biased decisions? Would we benefit for a voluntary label or other form of self-regulation? Those are some of the questions that companies operating in the EU could ask themselves to stay relevant in the market.

Second, share companies should share their experience with policymakers to ensure that a new EU legal framework does not hinder business activities or innovation beyond what is necessary to protect consumer and fundamental rights, and to ensure that any new legal framework does not create legal uncertainty or unnecessary red tape. Referring once again to the risk-based approached, the possible evolution of the qualification and criteria for “high-risk” use can have a significant impact on companies. Stakeholders have an opportunity to shape rules that could ensure the EU remains an open, competitive, and innovative market.

There have been certain voices calling for a reassessment of the Commission’s plans in relation to AI under the new circumstances created by the COVID19 outbreak, which could shed new light on the costs of not using AI-powered solutions. The Commission has however clearly insisted on the fact the questionnaire would be the perfect opportunity to reflect further on what a future regulation should look like to ensure that AI fulfill its promises for society.