European Union

The debate on CO2 targets for cars and vans in Europe by 2030 is shaping up to be another epic fight, write Greg Archer and Julia Poliscanova.

Written by Mihalis Kritikos,

© Maksim Kabakou / Shutterstock.com

Εxploring the relationship between law, technological innovation and regulatory governance has always been a challenging task for policy-makers. Technologies are often seen as ordinary objects of formal law that can fit into traditional doctrinal classification. But what if technologies questioned and challenged the traditional boundaries of legal thought? Some scholars even argue that technology is law, given that the employment of technology for control purposes in regulation provides opportunities to directly or indirectly shape human behaviour in legal terms. However, it is difficult to determine whether it is technology that challenges the law or the law that shapes, or even predefines, the development paths of new and emerging technologies.

Technology and regulation are often portrayed as adversaries. In a traditional legal setting, their relationship is limited to the grounding of legal reasoning in expert knowledge and scientific evidence. This is frequently the case in the domains of criminal, patent, consumer safety and environmental law. However, as law becomes more and more involved in regulating technological processes and products, it may inhibit or stimulate technological change as such.

Listen to podcast ‘What if technologies shaped the law?‘

In fact, on various occasions the normative influence of regulation upon the shaping of entire technological trajectories depends on the technology of regulation, namely the design and choice of regulatory policy instrument. That has been the case with the contentious development of crop biotechnology in Europe, attributed, among other things, to the centralised and expert-driven regulatory framework adopted for the release of genetically modified organisms (GMOs) into the environment and the European market.

Besides being an object of regulatory action, technology can also have an influential impact not only on the nature, content and type of regulation chosen to control technological developments, but also on the fulfilment of traditional legal objectives. For instance, science-based risk assessments have become the cornerstone of all EU legal rules that regulate the commercial authorisation of medicinal, plant protection and food products. Profiling technologies exert an influential role upon the shaping and interpretation of criminal rules, while internet content filters can protect minors from accessing harmful media content.

The employment of technology as a regulatory actor (appearing in the form of techno-regulation) indicates a shift from a ‘traditional legal order to a technologically managed order’. The development of regulatory technology, commonly known as RegTech, which refers to the use of technology to provide improved financial regulatory solutions, will be crucial to enable more efficient and effective regulation and compliance. In his famous book, Code and other laws of cyberspace, Lawrence Lessig argues that computer code (or ‘West Coast Code’, referring to Silicon Valley) regulates conduct in much the same way as legal code (or ‘East Coast Code’, referring to Washington, DC).

More specifically, code can determine behavioural options and the limits of interaction in virtual spaces, and the level of privacy protection required, as well as defining the terms of access to information in cyberspace. The normative influence of technology is mostly evident in those domains where algorithms are used. Algorithms, as currently understood, are formal rules, usually expressed in computer code as a set of instructions for a computer to follow, that make predictions on future events based on historical patterns. They are a self-contained step-by-step set of operations that computers and other ‘smart’ devices carry out to perform calculations, data processing and automated reasoning tasks.

Algorithms are widely employed to make decisions that have increasingly far-reaching impacts on individuals and society, not least in their applications for access to credit, healthcare, human welfare and employment. They are regulating more and more aspects of our lives by implementing institutional decision-making based on analytics, which involves the discovery, interpretation and communication of meaningful patterns in data, illustrating an increasing tendency to rely on technology as a substitute for other forms of regulation. In fact, self-running and self-enforcing technological applications could challenge traditional notions of legal personality, individual agency and responsibility.

The advent of blockchain technology and the transposition of contractual relationships into smart contract code that simulates the function of legal contracts through technology, or the adjustment of the software codes for autonomous vehicles to traffic regulations may also signal a shift from the traditional notion of ‘code is law’ (i.e. code having the effect of law) to the new conception of law is code. According to this narrative, the law is progressively starting to assume the characteristics of code, given the inclination to replace current laws and regulations with technical regulation – which can be enforced ex ante through code. This can be clearly seen in the case of smart cars that could simply refuse to start the engine if the sensors indicated that the driver had not fastened their seat belt properly, or of the programming of ‘no fly zones’ in drones.

What does the legal conceptualisation of technology mean for European policy-making?

The clear-cut division between law and technology has faded away, on account of the fact that scientific notions and technological concepts such as gene editing and autonomous machines have penetrated legal categories, and triggered the reconsideration of traditional legal terms such as autonomy and privacy. Some scholars have argued that mutual acknowledgment of the boundaries between law and technology has been replaced by a ‘co-production’ regime, where technology and policy are inter-related. The prospect of automated legal governance through the development of digital technologies may also lead to the weakening of centralised structures of law at EU level, in terms of their ability to control and supervise multiple aspects of citizens’ public and private lives.

Examination of the multiple facets of the interface between law and technology and of the increasingly influential role of technology in the shaping of legal rules and reasoning triggers a series of questions. Does EU law have the capacity to strike the right balance between technology as a regulatory object or category and technology as a regulatory agenda-setter? Can law, regulation and technology engage in meaningful conversations that cross doctrinal and technological categories? Should the technical code approached through Lessig’s lens be the most significant form of law? Will EU legislators acknowledge that codes codify values and cannot be treated as a mere question of engineering? A public debate on the aforementioned issues is urgently required given the intrusive potential of code as an enforcement mechanism and/or source of legal obligations that could lead to a Foucauldian networked governmentality and a self-regulated panopticon, whereby the decline of state powers is reinforced, and responsibilities and liabilities are increasingly passed down from the state to the individual technology user.

Read this At a glance on ‘What if technologies shaped the law?‘ on the Think Tank pages of the European Parliament.

Kazakhstan, the most impressive reformer in the Central Asian region, is set to benefit enormously from China’s Belt and Road initiative as an equal partner, Kate Mallinson of Chatham House said at an international conference marking the 20th anniversary of Astana, on 5 June.

The Bulgarian Presidency of the EU has tabled fresh options for the bloc’s energy ministers who are meeting on Monday (11 June) to finalise their position on three laws that will shape Europe’s energy and climate policy until 2030.

Denmark is the last country still to complete its national permit procedure for the Nord Stream 2 gas pipeline designed to bring Russian gas offshore to Germany under the Baltic Sea, after Nord Stream 2 obtained a permit from the Swedish government yesterday (7 June).

Despite an anti-German campaign run by the Law and Justice party (PiS) government and the media that support it for almost two years, Polish people's attitude towards Germans and the German view of Poles have not worsened in the slightest. EURACTIV’s media partner Gazeta Wyborcza reports.

Ukrainian lawmakers yesterday (7 June) approved key legislation to create a long-awaited anti-corruption court while also voting to dismiss the country's finance minister, a respected reformer backed by the West.

This week, real trade war now, European development days take a bow, and Europe unites to save Penka the cow.

Leaders of the Group of Seven rich nations headed for a summit in Canada on Thursday more divided than at any time in the group's 42-year history, as US President Donald Trump's "America First" policies risk causing a global trade war and deep diplomatic schisms.

On World Ocean Day (8 June), it is important to bring back to the forefront the debate of overfishing which is undermining the health of our oceans. Five years after the reform on the EU Common Fisheries Policy nothing much has changed, and discarding at sea is still common practice, writes Rebecca Hubbard.

Weekly schedule of President Donald Tusk 7-17 June 2018

The EU’s External Investment Plan (EIP) is the latest addition to the increasingly cluttered landscape of public-private development finance. The EIP's future shape and the role it can play was one of the hot topics at the European Development Days on 5-6 June.

Macedonia's deputy prime minister expects growing "external resistance" as negotiations on the name dispute with Greece get closer to a final deal which would unblock the country's NATO and EU membership bid.

Written by Christian Scheinert (1st edition),

© DeStagge / Fotolia

The European Union is facing new security threats amid growing uncertainty about the reliability of some of its allies. As a consequence, it has embarked on a general scaling-up of its defence capabilities. A European defence action plan has been agreed and a European Defence Fund created to provide financial support, ranging from the research phase to the acquisition phase of military equipment and technologies. The present legislative proposal for EDIDP, which would be part of that fund, is destined to provide the European defence industry with financial support during the development phase of new products and technologies in areas selected at European level. Parliament’s Committee on Industry, Research and Energy (ITRE) decided to open trilogue negotiations; these have been ongoing since 15 March 2018.

Versions

• June 2018: ‘European defence industrial development programme (EDIDP)‘ (1st edition)

Proposal for a regulation of the European Parliament and of the Council establishing the European Defence Industrial Development Programme aiming at supporting the competitiveness and innovation capacity of the EU defence industry Committee responsible: Committee on Industry, Research and Industry (ITRE) COM(2017) 294
7.6.2017 Rapporteur: Françoise Grossetête (EPP, France) 2017/0125(COD) Shadow rapporteurs:

 

  Miroslav Poche (S&D, Czech Republic)
Zdzisław Krasnodębski (ECR, Poland)
Dominique Riquet (ALDE, France)
Neoklis Sylikiotis (GUE/NGL, Cyprus)
Reinhard Bütikofer (Greens/EFA, Germany)
David Borrelli (EFDD, Italy)
Christelle Lechevalier (ENF, France) Ordinary legislative procedure (COD) (Parliament and Council on equal footing – formerly ‘co-decision’) Next steps expected: Finalisation of trilogue negotiations

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Horizon Europe, the EU’s research programme, has been one of the biggest winners of the EU’s long-term budget after 2021. But it’s not all about money (even if we're talking about  €100 billion here). Science needs a mission, Commissioner Carlos Moedas told reporters on Thursday.

The UK proposed Thursday to stay in the EU customs union until a new customs arrangement is agreed, which includes a solution to avoid a hard border in Ireland. It said it expected the new arrangement "to be in place by the end of December 2021 at the latest." EU negotiator Michel Barnier welcomed the proposal but said he wanted to check it respects EU red lines.

As the EU unit dealing fake news and propaganda is under threat, it is now time for some leadership in the fight against Russian disinformation.

The Council reached an agreement on new measures aimed at updating EU electoral law.

The Council adopted a general approach on updated electronic road tolling rules.

Council adopted a general approach on updated rules on port reception facilities.