New Regulatory Approaches under the EU’s Legislation on Digitalisation: Introduction to the Special Edition of the EJRR “Charting the Landscape of Automation of Regulatory Decision-Making”
[en] his introductory article outlines three fundamental regulatory developments in the EU’s legislation
addressing digitalization and automation of decision-making: One is that across many acts we see a
move towards more complex multi-level composite procedures, involving not only public structures
with agencies, EU bodies, national agencies, but also co-regulation through standardisation in
combination with – in several areas – audited self-regulation. A second feature of much of the
current legislation in digital matters is that obligations imposed therein require an increased
attention to information management – from sourcing to use, dissemination, sharing. This is a
requirement for both public and private actors imposing ever more ‘granular’ knowledge and
reporting of information flows in economic operators. A third is the growing role of interoperability
which is being firmly established as a tool to create data exchange possibilities The diverse
regulatory tools and methods are creating complex networks of legal relations and obligations which
appear difficult to submit to oversight and compliance without strong protection of individual rights
and procedural structures ensuring their enforcement.
Disciplines :
Droit européen & international
Auteur, co-auteur :
HOFMANN, Herwig C H ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Department of Law (DL)
Co-auteurs externes :
no
Langue du document :
Anglais
Titre :
New Regulatory Approaches under the EU’s Legislation on Digitalisation: Introduction to the Special Edition of the EJRR “Charting the Landscape of Automation of Regulatory Decision-Making”
1 Kai Zenner, J. Scott Marcus and Kamil Sekut, “A dataset on EU legislation for the digital world of 23 November 2023” in Breugel datasets, available at (last accessed 30 May 2024).
2 COM(2020)66 final.
3 Anu Bradford, Europe’s Digital Constitution, (2023) Virginia Journal of International Law Vol. 64:1, 1–68 at pp. 40–52. The large majority but not all of the acts adopted in the digital field have a single-market dimension. Some of the acts are also policy-specific (such as finance, health and digital services). Others, such as the DMA, being more akin to a competition policy tool and yet some acts also address specific uses of given technologies, such as the AI Act. Again, others are aimed at specific uses of information such as in the context of political advertising. All may be relevant for the basis of automated decision making in various elements.
4 I focus in the following on those acts most discussed in various contributions to this special edition such as the GDPR, DSA, DMA, AI Act, Data Act, Data Governance Act and the Interoperability Act.
5 See with further explanations Oriol Mir, “Algorithms, Automation and Administrative Procedure at EU Level” in Herwig C. H. Hofmann and Felix Pflücke (eds), Governance of Automated Decision-Making and EU Law (Oxford University Press, Oxford: 2024), 53–78 at pp. 65–69.
6 COM(2020)66 final.
7 See, for example, Felix Pflücke, “Interoperability in the EU: The Way for Digital Public Services” in Herwig C. H. Hofmann and Felix Pflücke (eds), Governance of Automated Decision-Making and EU Law (Oxford University Press, Oxford: 2024), pp. 267–290.
8 See in this special issue, Felix Pflücke, “Data Access and Automated Decision-Making in European Financial Law.”
9 Filipe Brito Bastos, Derivative Illegality in the European Composite Administrative Procedures, (2018) Common Market Law Review 101–134;
Mariolina Eliantonio, Judicial Review in an Integrated Administration: The Case of “Composite Procedures,” (2014) Review of European Administrative Law 65–102;
Herwig C.H. Hofmann, “Composite decision-making procedures in EU administrative law” in H.C.H. Hofmann, A.H. Türk (eds), Legal Challenges in EU Administrative Law – Towards an Integrated Administration (Elgar, Cheltenham: 2009) 136–167;
Giacinto Della Canaea, The European Union’s Mixed Administrative Proceedings, 2005 Law and Contemporary Problems 197–218.
10 Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act, DSA) OJ 2022, L 277.
11 Regulation (EU) 2022/868 of the European Parliament and of the Council of 30 May 2022 on European data governance and amending Regulation (EU) 2018/1724 (Data Governance Act) OJ 2022 L 152.
12 Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (Data Act) OJ 2023 L 2854.
13 The EDIB is established by the Commission as an expert group pursuant to Art 29 of Regulation (EU) 2022/ 868.
14 Regulation (EU) 2024/903 of the European Parliament and of the Council of 13 March 2024 laying down measures for a high level of public sector interoperability across the Union (Interoperable Europe Act) OJ 2024 L 903.
15 Arts 15 and 16 Interoperable Europe Act.
16 Member States are obliged (Art 49 DSA) to designate at least one competent authority (where there are several, one needs to be the coordinator). This is responsible for the supervision of providers of intermediary services.
17 All inter-agency communication is to be conducted through the EU information sharing system referred to in Art 85 DSA.
See with greater detail Jens-Peter Schneider, Kester Siegrist, Simon Oles, “Collaborative Governance of the EU Digital Single Market established by the Digital Services Act” in Herwig C. H. Hofmann and Felix Pflücke (eds), Governance of Automated Decision-Making and EU Law (Oxford University Press, Oxford: 2024), 79–122.
18 Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) OJ 2022 L 277/1.
19 Regulation (EU) 2022/1925 of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU 2020/1828 (Digital Markets Act) OJ 2022 L 265/1.
20 Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (Data Act) OJ 2023 L 2854.
21 Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (AI Act) OJ L, 2024/1689. Standardisation by co-regulation in the context of few powerful market actors however has problems such as the ones described by Hans-W. Micklitz, The Role of Standards in Future EU Digital Policy Legislation, Commissioned by ANEC and BEUC July 2023.
22 Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council Text with EEA relevance;
OJ 2012 L 316/12;
consolidated version with changes was published in 2015 .
23 Jens-Peter Schneider, Kester Siegrist, Simon Oles, Collaborative Governance of the EU Digital Single Market established by the Digital Services Act (September 4, 2023). University of Luxembourg Law Research Paper No. 2023-09, Available at SSRN .
24 See further discussion eg, Herwig C.H. Hofmann, “Dealing with Trans-Territorial Executive Rule-Making” (2013) 78 Missouri Law Review, 423–442.
25 See eg, C-160/20, Stichting Rookpreventie Jeugd and Others, EU:C:2022:101;
C-588/21 P Public.Resource and Right to Know, ECLI:EU:C:2024:201 which in para 83 needed to remind EU institutions that “it must be recalled that ‘the principle of transparency is inextricably linked to the principle of openness, which is enshrined in the second paragraph of Article 1 and Article 10(3) TEU, in Article 15(1) and Article 298(1) TFEU and in Article 42 of the Charter.’”
26 See eg, Colin Kirkpatrick, David Parker (eds), Regulatory Impact Assessment – Towards Better Regulation? (Elgar, Cheltenham 2007);
Claire A. Dunlop, Claudio M. Radaelli (eds), Handbook of Regulatory Impact Assessment (Elgar, Cheltenham 2016).
27 Arts 19 and 43 of the Artificial Intelligence Act Proposal of 21 April 2021.
28 Regulation 2016/679 of the EP and Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1.
29 Eg, Herwig C.H. Hofmann, Dirk Andreas Zetzsche, Felix Pflücke, The Changing Nature of “Regulation by Information”: Towards Real-time Regulation? (2023) European Law Journal 172–186 .
30 The fact that EU administrative law was developing largely towards information law goes back to a seminal 1996 article (Eberhard Schmidt-Aßmann, “Verwaltungskooperation und Verwaltungskooperationsrecht in der Europäischen Gemeinschaft” (1996) 31 Europarecht 270). This understanding was the basis of the 2014/2017 ReNEUAL Model Rules on European Administrative law books V and VI. The Research Network on EU Administrative Law (ReNEUAL) model rules on European administrative law contain an entire book on administrative information management. It serves as a draft for a comprehensive legal framework for inter-administrative data sharing by means of digital information systems including shared databases and early warning systems.
31 Case C401/19 Republic of Poland v. European Parliament and Council of the European Union [2022] ECLI:EU: C:2022:297, para 67.
32 See eg, C634/21 OQ v Hessen and Schufa (Schufa) ECLI:EU:C:2023:957.
33 Indra Spiecker genannt Döhmann, in P. Cane, H.C.H. Hofmann, E. Ip, P. Lindseth (eds) Oxford Handbook of Comparative Administrative Law (Oxford University Press, Oxford: 2021) 677–696, at p. 692.
34 Herwig C.H. Hofmann, Dirk Andreas Zetzsche, Felix Pflücke, The Changing Nature of “Regulation by Information”: Towards Real-time Regulation? (2023) European Law Journal 172–186 https://doi.org/10.1111/eulj. 12466.
36 Paulina Jo Pesch, Franziska Böhm, Interoperability in the EU: Paving the Way for Digital Public Services, in Herwig C. H. Hofmann and Felix Pflücke (eds), Governance of Automated Decision-Making and EU Law (Oxford University Press, Oxford: 2024), 53–78 at pp. 267–289.
37 COM(2020)66 final.
38 Regulation (EU) 2024/903 of the European Parliament and of the Council of 13 March 2024 laying down measures for a high level of public sector interoperability across the Union (Interoperable Europe Act) OJ 2024 L 903.
39 The abbreviations describe information flows with the letter G standing for “government” or public bodies, B for business and C for consumers or natural persons. The number 2 stands for the word “to” thus describing the direction of information sharing.
40 On the possibility thereof see Herwig C.H. Hofmann, Felix Pflücke (eds) Governance of Automated Decision-Making and EU Law (Oxford University Press Oxford 2024).
