Publications

As part of the “better regulation” agenda, the European Commission created a semi‐independent institution, the Regulatory Scrutiny Board, to monitor the preparation of policy proposals. The position of this Board is potentially wide‐ranging. A proposal that is not given the green light by it cannot proceed in the Commission's internal decisionmaking process. But so far, the Board has only received scant scholarly attention. We provide a comprehensive analysis of the impact of the Regulatory Scrutiny Board on the Commission's policy preparation. Using machine learning techniques and quantitative text analysis, we study 673 Board opinions and compare almost 100 draft and final policy proposals. Our findings show that the Board is an active watchdog that is taken seriously by the Commission's departments. A full understanding of policy preparation in the EU therefore requires more scholarly attention to the Regulatory Scrutiny Board.

Recent EU legislative and policy initiatives aim to offer flexible, innovation-friendly, and future-proof regulatory frameworks. Key examples are the EU Coordinated Plan on AI and the recently published EU AI Regulation Proposal which refer to the importance of experimenting with regulatory sandboxes so as to balance innovation in AI against its potential risks. Originally developed in the Fintech sector, regulatory sandboxes create a testbed for a selected number of innovative projects, by waiving otherwise applicable rules, guiding compliance, or customizing enforcement. Despite the burgeoning literature on regulatory sandboxes and the regulation of AI, the legal, methodological, and ethical challenges of regulatory sandboxes have remained understudied. This exploratory article delves into the some of the benefits and intricacies of employing experimental legal instruments in the context of the regulation of AI. This article’s contribution is twofold: first, it contextualizes the adoption of regulatory sandboxes in the broader discussion on experimental approaches to regulation; second, it offers a reflection on the steps ahead for the design and implementation of AI regulatory sandboxes.

At the moment of writing, we are waiting for the publication of the new Communication of the European Commission on better regulation, originally announced for Spring 2020 and then delayed to Autumn 2020, re-scheduled for February 2021 and now announced for the end of April 2021. To understand the Communication, however, we need a map to navigate the better regulation strategy of the European Commission, and situate events like the publication of a Communication in the broader political context of the European Union (EU). To provide such a map is the aim in this paper. Indeed, this is a good time to look at what has been achieved in the domain of better regulation, and what has changed along the way both in the political context, and in the social climate. Policy paradigms in economic, innovation and sustainability policy have also moved fast. It is always useful to rewind the clock and listen to what the recent political history has to tell us. Hence let us start with the question what was the state of play with better regulation when the new Commission chaired by Ursula von der Leyen started its operations? Was EU-style better regulation in need of major repair, or was it grosso modo doing well?

In times of digital pervasion of everyday life, the EU has strengthened a normative idea of European fundamental rights, especially by referring to a strong notion of privacy protection. A normative corridor is evolving with the “right to privacy” at its heart, a right that will be instrumental in shaping the European legal architecture’s future structure. In this Article we argue that the constitutional protection of privacy rights is not only of individual relevance but also of major democratic significance: it protects the integrity of the communication structures that underpin democratic self-determination. The debate on privacy protection, however, often lacks a democratic understanding of privacy and misses its public value. Following an interactionist understanding of privacy and a discourse-theoretical model of democracy, our argument puts forward a conceptual link between privacy and the idea of communicative freedom. From this perspective, the substantiation of a European fundamental right to privacy can be seen as a possible contribution to promoting European democracy in general.

Online platforms such as Google, Amazon, and Facebook play an increasingly central role in the economy and society. They operate as digital intermediaries across interconnected sectors and markets subject to network effects. These firms have grown to an unprecedented scale, propelled by data-driven business models. Online platforms have a massive impact on individual users and businesses, and are recasting the relationships between customers, advertisers, workers, and employers. This has triggered a public debate on online platforms’ economic dominance and patterns of pervasive data collection. The report provides evidence of positive impact, and documents a set of important issues not fully addressed by existing European regulation and enforcement. The consensus is that there is a need to strengthen the current law enforcement and regulation of the platform economy. This report welcomes the proposed Digital Markets and Digital Services Acts, and offers a series of policy options for competition and innovation, working conditions and labour markets, consumer and societal risks, and environmental sustainability.