Clarifying the European legal framework for respectful use of Disruptive technologies – the picture so far

When the public sector aims to introduce disruptive technologies (DTs), different legal requirements must be adhered to. These legal requirements include, among many others, consistency with the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, the General Data Protection Regulation, the General Product Safety Directive, the Product Liability Directive, and the Regulation on the free flow of non-personal data.

To identify these and other different requirements, the ETAPAS project is conducting a legal framework analysis, taking into consideration existing case law and legal literature. This task is taken up by the team of Uni Graz, currently consisting of Professor Iris Eisenberger, Professor Tina Ehrke-Rabel, Magdalena Nemeth, Tess Upperton, Sarah Domes-Hohl, Albert Steiner and Annemarie Hofer.

The framework analysis is led by the question: is there an existing EU Legal Framework for the implementation of Disruptive Technologies in the Public Administrative Sector? And if so, what kind of framework is it?

We’ve started by establishing a working definition of disruptive technologies to enable us to clarify which information we were looking for. Through this, we were able to analyse the binding EU legal framework, consisting of primary and secondary law as well as case law. Within the analysis of primary law, we found four core considerations in connection to DTs.

  • Fundamental Rights
  • Market Freedoms
  • Precautionary Principle
  • Proportionality Principle

The secondary law consists of directives that must be transformed into national law, and regulations, which apply directly to member states. Some of the relevant regulations are the Race Equality Directive, the Directive on equal treatment in employment and occupation and the Directives on equal treatment between men and women in relation to employment and access to goods and services.

Regarding case law, unsurprisingly we have found few factually relevant cases by the CJEU on DTs so far, given their rapid emergence and that the Court is generally seen as being reluctant to intervene in matters of high policy or “evolving technology”. Considering ECHR cases, mainly the right to respect for private and family live (Art 8 ECHR) and the freedom of expression (Art 10 ECHR) seem to be of interest in connection with DTs.

When looking at non-binding sources, we have mainly focused on White Papers, Recommendations, Codes of Conduct and Communications, finding a variety of information on DTs, that will be taken into consideration in the framework analysis. 

 The next steps towards to the EU Legal Framework Analysis are the identification of gaps in binding and non-binding sources regarding the regulation of DTs in the public sector, and consideration of potential regulatory solutions. We will then analyse each source’s relevance to the research question to formulate the outcomes of the analysis as a paper draft.