The proposed EU AI Act (AIA) is a comprehensive piece of legislation. It aims to provide the world’s first “horizontal” regulatory framework for AI, not limited to a single industry or area of use. The text is currently making its way through the corridors of the EU legislature, although the overall structure of the proposed framework is expected to remain fundamentally unchanged. This is true, at least for the purposes of this paper’s topic: the role of private rule-making (especially standard-setting) in its implementation.
As discussed and analyzed extensively elsewhere, the legislation, in essence, proposes a risk-based framework. It distinguishes AI practices based on whether they pose “unacceptable” (Title II), “high” (Title III), “limited” (Title IV) or “minimal/low” (Title IX) risks. The degree of regulation applied to each category varies on a sliding scale, from completely prohibiting unacceptable practices to minimal risk enforcement subject to transparency obligations, such as flagging the use of AI systems when interacting with humans.
This entry proposes to focus on the most controversial part of this scale, namely the “high risk” (Title III) system. In essence, such implementations of AI will be subject to a rigorous certification, conformity assessment and registration process, with ongoing monitoring and re-evaluation, should significant changes occur during the lifecycle of the AI system.
In particular, the paper zeroes in on the important role that standards adopted by European Standardization Organizations (“ESOs”) will play in the AIA framework. This paper will first provide a brief overview of the role of harmonized standards in the current AIA draft and some possible implications for its implementation. It will then explore the current unclear status of harmonized standards as “EU law”, which from one perspective, at least, should be accessible to the public and subject to full judicial review while respecting legal intellectual property (“IP”). Powers of ESOs, which are private bodies. Finally, it will conclude with some broad reflections on the way forward.
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