Better Regulation
C. Cagnin; S. Muench.; F. Scapolo (2022)
Shaping and securing the EU's Open Strategic Autonomy by 2040 and beyond
The objective of the foresight process was to look at Open Strategic Autonomy in a systematic and systemic way, encompassing different dimensions and look at them in a holistic manner. This report is part of the 2021 European Commission Strategic Foresight Agenda. Desk research, including literature review and policy analysis, synthetises existing knowledge on the current state and future possibilities in 2040 and beyond. The report presents an overview of Europe’s existing capacities, dependencies and vulnerabilities. It also describes trends and emerging issues, looking forward at how they could evolve over time, and looking at the opportunities and risks they entail. The report highlights ways the EU can start to seize the benefits from positive developments and ways to transform risks into potential for positive transformation.This report presents foresight scenarios on the global standing of the EU in 2040, in relation to Open Strategic Autonomy. They point to ways for the EU to build preparedness through anticipation. A Delphi enquiry enabled the engagement of experts who assessed and ranked the identified 'forward-looking issues' in terms of their relevance for shaping and securing the EU’s Open Strategic Autonomy towards 2040.Finally, we outline implications for leveraging the EU’s capacity to implement an Open Strategic Autonomy by 2040 and beyond. We highlight the ways in which the EU can use its existing strengths and develop further capacities, both by itself and through alliances. We address current weaknesses and upcoming challenges, point to ways of seizing underlying opportunities, and implementing identified priorities required to shape and guarantee Open Strategic Autonomy. The implications outlined should be considered as a set, as in this way they can ensure establishing a coherent policy framework.
Artificial Intelligence and new technologies regulation
Fabiana Di Porto (2021)
Algorithmic disclosure rules
During the past decade, a small but rapidly growing number of Law&Tech scholars have been applying algorithmic methods in their legal research. This Article does it too, for the sake of saving disclosure regulation failure: a normative strategy that has long been considered dead by legal scholars, but conspicuously abused by rule-makers. Existing proposals to revive disclosure duties, however, either focus on the industry policies (e.g. seeking to reduce consumers’ costs of reading) or on rulemaking (e.g. by simplifying linguistic intricacies). But failure may well depend on both. Therefore, this Article develops a `comprehensive approach', suggesting to use computational tools to cope with linguistic and behavioral failures at both the enactment and implementation phases of disclosure duties, thus filling a void in the Law & Tech scholarship. Specifically, it outlines how algorithmic tools can be used in a holistic manner to address the many failures of disclosures from the rulemaking in parliament to consumer screens. It suggests a multi-layered design where lawmakers deploy three tools in order to produce optimal disclosure rules: machine learning, natural language processing, and behavioral experimentation through regulatory sandboxes. To clarify how and why these tasks should be performed, disclosures in the contexts of online contract terms and privacy online are taken as examples. Because algorithmic rulemaking is frequently met with well-justified skepticism, problems of its compatibility with legitimacy, efficacy and proportionality are also discussed.
Digital markets
F. Di Porto; T. Grote; G. Volpi (2021)
'I See Something You Don't See'. A Computational Analysis of the Digital Services Act and the Digital Markets Act
In its latest proposals, the Digital Markets Act (DMA) and Digital Services Act (DSA), the European Commission puts forward several new obligations for online intermediaries, especially large online platforms and “gatekeepers.” Both are expected to serve as a blueprint for regulation in the United States, where lawmakers have also been investigating competition on digital platforms and new antitrust laws passed the House Judiciary Committee as of June 11, 2021. This Article investigates whether all stakeholder groups share the same understanding and use of the relevant terms and concepts of the DSA and DMA. Leveraging the power of computational text analysis, we find significant differences in the employment of terms like “gatekeepers,” “self-preferencing,” “collusion,” and others in the position papers of the consultation process that informed the drafting of the two latest Commission proposals. Added to that, sentiment analysis shows that in some cases these differences also come with dissimilar attitudes. While this may not be surprising for new concepts such as gatekeepers or self-preferencing, the same is not true for other terms, like “self-regulatory,” which not only is used differently by stakeholders but is also viewed more favorably by medium and big companies and organizations than by small ones. We conclude by sketching out how different computational text analysis tools, could be combined to provide many helpful insights for both rulemakers and legal scholars.
Digital markets
Pınar Akman (2021)
Regulating Competition in Digital Platform Markets: A Critical Assessment of the Framework and Approach of the EU Digital Markets Act
The European Union’s Digital Markets Act (DMA) initiative, which is set to introduce ex ante regulatory rules for “gatekeepers” in online platform markets, is one of the most important pieces of legislation to emanate from Brussels in recent decades. It not only has the potential to influence jurisdictions around the world in regulating digital markets, it also has the potential to change the business models of the wealthiest corporations on the planet and how they offer their products and services to their customers. Against that backdrop, this article provides an analysis of the aims of and principles underlying the DMA, the essential components of the DMA, and the core substantive framework, including the scope and structure of the main obligations and the implementation mechanisms envisaged by the DMA. Following this analysis, the article offers a critique of the central components of the DMA, such as its objectives, positioning in comparison to competition law rules, and substantive obligations. The article then provides recommendations and proposes ways in which the DMA – and other legislative initiatives around the world, which may take the DMA as an example – can be significantly improved by, inter alia, adopting a platform-driven substantive framework built upon self-executing, prescriptive obligations.