24th January 2024- EU Laws Shreya Notes n then vaishline

- Historical background

- Europe saw two world wars, the last one ended in 1945.
- There was a lot of destruction.
- What do we need to rebuild?
- Capital, Policies etc.
- But raw material is needed. EU countries came together to fulfil the need for steel
and coal.
- What happened to Germany after the war
- Germany was divided into multiple parts.
- Two main areas, one governed by capitalist forces and one united by forces.
- There was a tremendous increase in World War 1, which resulted in World War 2.
- In control of Germany, the union came together.
- Inception, they came together to have economic benefits out of coal and steal.

- European Coal and Steal Community. (ECSE) or Treaty of Paris

-6 European states.

- It came into force on 25th July 1952. 6 European states agreed to work together.
This treaty formed the foundation of the EU. It established certain committees. These
committees expired on 23rd July 2002.

- Founding members: Belgium, France, Germany, Italy, The Netherlands and

Luxemburg founded the Treaty of Rome and Paris

- Treaty of Rome. Below, two communities was formed. Signed on 25th March 1957

• EEC-European Economic Community

• EAEC- European Atomic Energy Committee.

- European Coal and Steal Community was a kind of experiment. the common coal
and steal market was taken as an Experiment that could also be extended to other
economic spheres, finally resulting in political Europe.

- After India’s Parition free flow of goods stopped.

- In order to have free flow of goods and a common market
1. Freedom for moment of Goods
2. Freedom for movement of people of EU
3. Freedom for movement of Capital of EU countries
4. Freedom for movement of services

- EUAC aka Euratom-To promote peaceful use of Nuclear energy.

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- To coordinate amongst the nations the supply of atomic material and to promote
research among member states for the peaceful use of nuclear energy.

- Robert Schuman- 1950 the start of European integration. He proposed it. 9th May
1950..European Union will made through concrete achievements that through
defacto solidarity. De facto means something which does not require legal seal.
Defacto Union that all Nations are dependent.

- Based on this statement the countries signed treaty of Paris.

- Treaty of Paris dealed with number of issues
1. Freedom movement of goods
2. Freedom of movement of production
3. Permanent monitoring of the markets to avoid detortions, which could lead to the
introduction of production quotas.

- Next EU aim-To ensure rules and compliance of competition law. And the principle
of price transparency.
- The next objective is to support modernization and convert the coal and steel
sectors in modern one./ Advanced sector.
- Defence integration.
- European Defence Committee was negotiated in 1952. Because France refused to
ratify the treaty. So, ultimately, it did not take a form.
o The Efforts moved head, EEC-European Economic Community
o Aspects:
1. Eliminate the customs duties in member states.
2. Tends to esctablish an external common custom tariif.It means a common tariif
amoung__
3. Common policies for agriculture amongst EU nations. India's economy depends
on agriculture sector. Same thing in EU economy
4. Common policies for transport amongst the EU nations
o EAEC- European Atomic Energy Committee.
- Most favoured nations-
- In order to have liberal custom policy, in an easy and barrier free manner. To
promote local goods.
- Customs laws
- Maritime law-Admiralty Jurisdiction

EU LAW
Theories which contributed to the current EU

MULTI LEVEL GOVERNANCE SET UP IN THE EU

GOVERNMENT

Theories new functionalism last class

Says certain players influence decision making process, not only the gov.

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Tariff barriers- Barriers that are imposed on a product, a protective layer for the
domestic products,
Non tariff barriers include regulations, quality checks etc which are stringent and
restrict outside party leading to a kind of restraint.
EU tried to reduce the latter for integration

Europian integration over the past decade has been a policy creating as well as
market deepening process (markets have been made to come closer despite
territorial distance etc, it furthers the concept of ease of doing business). It also
control expansionist ideologies.
The single Europian Act and the Mascheutrs treaty are for market regulation in which
a wide variety of non tariff barriers have been reduced or eliminated. These
institutional reforms have led to a system of multi-level governance that
encompasses a variety of authoritative institutions at supranational, national and sub
national levels of decision making.

Supranational many countries come together to promote joint interest at a

supranational singular level.
National level central gov makes the laws.
At sub national level, the decision is taken by the players not per se involved in
governmental set up but exert influence over the government’s decisions. Eg. trade
union, corporate houses,

Sub-national lobbying officers-

its further suggested that sub national actors are increasingly

affected by developments at the eu lvl and have mobilised to
participate in a policy making process at that level. One of the way of
achieving that objective is through the opening of sub national
lobbying office in Brussels.

These sub national offices are like unofficial embassies and they play a role to
provide support to the domestic companies in export of their service or products.
The other function which has been ascribed to the sub national offices is to procure
literature comcernininfo abt the eu legislations and further they supply that info in
their sub national network which ultimately leads to info being supplied to eu decision
makers. It means

Difference between monetary and economic policies

A common monetary policy would make it difficult for gov to control their domestic
policies because it would deprive them of their lower to regulate imports and exports.
Further, without the adoption of a common economic policy, it would be difficult to
keep a monetary union in tact. Economic policy is one

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of the keys determinants of currency stability, for example, if some governments
adopted more inflationary policies, than other countries, then the value of the
currency used in countries that were trying to avoid inflation would be undermined.

Inter governmentalism

In response, to the neofunctionalist analysis of european integration, a counter

argument was put forth by Mr. Hoffman.furthermore this argument relies heavily on
realist assumptions about the role of states n more particularly the gov of states in int
relations. His arguments or criticism of neo functionalism;

1. European integration had to be viewed in a global context. Regional

intergration was only on the aspect of the development of the global
international system
2. National gov control process of intergration. Self interest guides. National
governments were uniquely powerful actors in the process of Europe
integration. Furthermore,hey controlled the nature and pace of integration
guided by their concern to protect and promote the national interest.
3. Although where national interest coincided then governments might accept
closer integration. In the technical functional sectors, the integration process
would not spread to areas of high politics such as national security and
defence.

Further, the major choices in favour of the Europe, were a reflection of the
preferences of the national government and not the supra national organisations.
Further, these national preferences reflected the balance of economic interest, rather
than the political bias of politicians,or national strategic security concerns. The
outcome of negotiations reflected the relative bargaining value power of the state.
The delegation of the decision making authority to supra national institutions,
reflected the wish of the central or domestic government to ensure that the
commitments of all parties to the agreement could be carried out effectively.

CONSTRUCTIVISM
• One of the European integration process
• It is one of the recent theoretical editions of the study of EU,
• It revolves around a concept that we humans do not sustain ourselves
independently. We are entrenched in the social setting . So social setting
has effect on eu too.
• First humans create norms, values etc basically the social setting and later
these social settings influence the decision we take in future.
• The aspect of social constructivism revolves around the aspect that human
beings are not separate from their environmental context which is also
called the structure.
• Ideas and beliefs that form the ideational environment that an actor finds
themselves within informs the actions of individuals.

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 • In other words, we can state that individuals collectively reproduce or
reconstruct this environment through their behaviour and actions.
• It further states that constructivism is based on a social ontology which insist
that human agents do not exist independently from their social environment
and its collectively shared systems of meaning like culture.

Ontology

• it can be categorised as an understanding of how things are, for example,

inter governmentalist ontological position would be that states are rational
and independent actors.

Epistemology

• Study of how to acquire the knowledge

• It is categorised as the study of how knowledge is acquired. Further,
epistemological position determines the way you’re trying to study some
concepts.

Structure

• Means the environment we are referring to. Made by the societies and
individuals.
• It is the environment that someone or something finds itself in eg. a society,
organisation, or department.

• Unlike the concept of neofunctionalism and intergovernmentalism,

constructivism is not ontologically rationalist or materialist. Meaning thereby,
it does not see state actors as acting rationally. On the basis of
maximisation of their material benefits and the minimisation of cost.
• On the contrary, constructivism is sees actors as profoundly impacted by
ideas, beliefs and their identity.
• To understand an actor, u need to understand their beliefs and thinking.
• Constructivist assert that to study actors effectively, one needs to understand,
how their belief system operates about themselves or about what
the correct or right thing to do impact on what they do.
• Further, In turn to that one needs to analyse how these actions themselves
reinforce these beliefs and come to further to create the broader social or
cultural environment for other actors.

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 • Constructivism breaks down the distinction between the agents, individuals or
states and The structural context that they find themselves in. Eg Europian
council meetings.
• Inter governmentalism is an agency sectored theory. It is concerned with the
what agents do on the basis of their interest. On the contrary, constructivist
sees agents and structure as mutually constituted meaning thereby, they
see structural factors such as the broader ides of the society shaping the
way those actors behave. For example, By setting the rules to regulate their
behaviour.
• further, at the same time, regular actions of individuals collectively adhering to
these ideas, reconstruct (in simple words, the structures affect who you are
as well as what you do and in turn, y behaving in a certain way, you help to
recreate the broader context that encourages or compels others to behave
in the same way.

The logic of consequences and the logic of appropriateness

• logic of appropriateness: behaving in line with what is acceptable in a given

society is known as operating according to a logic of appropriateness. Logic
of consequences is opposite of this. Eg, not shouting on elders even if they
do you harm.
• Logic of consequences: it refers to a situation when actors operate ac to what
will happen to them if they act in a particular manner, that is there actions
are backed with the idea that will they benefit or lose from their actions. Eg
India standing with Russia despite social image moral stand being accepted
by other countries.

• Intergovernmentalism operates on a logic of consequences wherein states

take decisions on the basis of whether they will benefit or not from a certain
decision. It is the consequences of their actions that determine whether they
decide to integrate at the Europian level.
• On the contrary, sociological institutionalism holds that state behaves
according to logic of appropriateness.
• It argues that states do not behave on the basis of what they will get out of a
decision but whether on what is acceptable and the right thing to do in a
given situation

EUROPEAN UNION COMMISSION

Institution that pushes for European law and sees implementation.
High authority established in 1951. Commission is now an evolved version. The
precursor of the European Commission was the high authority which was

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established in 1951 as part of the European coal and steel community. Over the
period, it was evolved into the European Commission which became one of the
central institutions of the EU.

3 pillars of European Union

1. Rule of law - should not include anything arbitrary, should be rational, these
principles are promoted by the EU.
2. Democracy
3. Human rights

Artificial intelligence act being passed by EU

First legislation regulating transactions of AI. AI has many features to make things
easier but it can also be used for abuse and play a role in infringing human rights.

AI and violation of human rights;

1. Deep fakes
2. Ai bias
3. Sofia first ai citizen spread anti semetic messages and was banned from
Twitter
4. Us woman scammed from hinge , invested money in an app, later couldn’t
retrieve it and the guy on vc turned out to be fake.
5. Ai can take up jobs
6. Toys at lower level having voice feature

Major role of the commission;

1. Guardian of the treaties (a supervisory role)

2. Policy initiator (proposes new legislations, defines those areas which
require Eu action, then makes a proposal and submits it to the European
Parliament and European council who have the power to make new laws)
So, Dual function of supervision to ensure treaties etc are followed, if they
are not then they can prosecute deflector states and impose penalty on
those members. Commission submits the proposal to other institutions such
as European Parliament and the council of European Union.
3. Third role is executive power. They have the power to manage the budget of
the EU. It also monitors compliances by member states.
4. External representation: the commission represents the EU on the int stage.
It is the face of EU, having power to deal with and negotiate treaties and
agreements with other foreign countries, int organisations. It also manages
diplomatic relations on behalf of the EU.

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Composition

1. College of commissioners- having power to execute wrt legislations and

policies, each being responsible for a specific policy areas.
2. The president of the commission- elected by the EU parliament. He leads
the college.
3. Commissioners- appointed by the EU council, taking into account the
president proposal.

Infringement procedure

Formal procedure, if a country violates the EU law and comes to the commission’s
knowledge then they have a right to first inform the commission about the breach
and ask for replies from member states. If breach found by commission, matter can
be referred to eu court of Justice, if breach found, penalties can be imposed on the
member country. Resending to court of Justice is possible if the country does not
remedy or rectify it.
Commission can also impose Financial penalties on the defective country.
Any aggrieved person or state can initiate.

EUROPEAN PARLIAMENT
Institution having power to legislate on eu laws. 705 members of parliament, who are
directly elected by the European citizens like our state assembly elections.

7 political groups or ideologies exist and participate in eu elections and parliament.

The people represent one of those ideologies not their respective countries. So how
is it decided how many members come from each country? There are 27 countries. It
depends on the population of the country.

The 7 political groups;

1. EPP- European people’s

2. SNP- Group of the progressive alliance of socialists and democrats of the
European power.
3. Green eu Europe
4. The greens/ European free alliance.
5. European conservatives and reformists
6. Identity and democracy
7. The left

27 committees function in the parliament.

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Plenary session happens in the parliament where the members vote to make
something a law. Before that, there are commmittees like;

1. foreign affairs
2. human rights,
3. security and defence committee
4. international trade,
5. economic and monetary affairs
6. environment, public health and food safety,
7. internal market and consumer protection.
8. legal affairs committee,
9. civil liberties, Justice and home affairs,
10. women rights and gender equality

Plenary sessions

Then there are plenaries sessions. Members of European Parliament cast their votes
on proposed European laws and take position on issues through debates.

Power and duty of the parliament

Legislative role

1. Passing eu laws along with council of the EU based on European

commission’s proposal.
2. Deciding on int agreements
3. Reviewing the commission’s work programme and asking it to propose
legislation. Oversees what work commission doing and tells it to make
research and come up with proposals if need be.
4. There are certain areas of law where parliament has sole authority and not
the EU member- states.

Supervisory Role:

1. To elect the president of the commission as well as approving commission

as a body.
2. Approving the budgetary allocation of commission and ensuring its effective
implementation on spending.
3. Examining citizen’s petitions and setting up enquires.
4. Discussing the monetary policy with the European central bank.
5. Observing the elections of the parliament. A committee is formulated for the
same.
6. 6 members minimum of parliament and 96 members is maximum per union
and total is 705 members including President in a EU.

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 COUNCIL OF THE EU
1. The government of each country member state has to discuss,
amend and adopt laws as well as to coordinate policies
2. Further, the ministers have the authority to commit their national
governments to the actions agreed on in the meetings.
3. It also develops the EU rules, foreign and security policy based on
Europian council guidelines.
4. Ministers in council vote, and proposal which gets simple majority
gets adopted. Eu ministers involve in discussion or voting procedure
on draft legislative acts and the decision can be achieved by having
a qualified majority. There are some sensitive topics like Foreign
policy and Taxation That require unanimous voting, not just a simple
majority.

EUROPIAN COUNCIL
(different from Council of European Union)

Role similar to that of DPSP and niti aayog in our countries. They don’t have the
power to suggest, make or implement laws. They give directions on how to make
long term or short term laws in certain areas. They give a political direction and set
the priority of the EU in motion.
The European council defines the EU’s overall political direction and priorities.
And sets the EU’s policy agenda in both the short term and the long term. Further, it
usually adopts conclusions at the European council meetings which identify issues of
concern and actions to be taken for the same. It is made up of leaders from 27
member states. It does not negotiate or adopt laws.

Different decisions and proposals require different levels, for

example,

1. It has to be unanimous in nature or

2. By simplified majority ( for procedural work voting)
3. By qualified majority (when establishing the list or proposing a candidate for
the post of president of commission.

For every 5 yrs they make a strategic agenda.

AI ACT and EU: Basically, the work of the European Parliament and the Council

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- The Treaty on the Functioning of the European Union (TFEU) is one of two treaties forming
the constitutional basis of the European Union (EU), the other being the Treaty on European
Union (TEU). It was previously known as the Treaty Establishing the European Community (TEC).
- Article 14 (ex Article 16 TEC)
- Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of
this Treaty, and given the place occupied by services of general economic interest in the shared
values of the Union as well as their role in promoting social and territorial cohesion, the Union and
the Member States, each within their respective powers and within the scope of application of the
Treaties, shall take care that such services operate on the basis of principles and conditions,
particularly economic and financial conditions, which enable them to fulfil their missions. The
European Parliament and the Council, acting by means of regulations in accordance with the
ordinary legislative procedure, shall establish these principles and set these conditions without
prejudice to the competence of Member States, in compliance with the Treaties, to provide, to
commission and to fund such services
- Article 114 (ex Article 95 TEC) 1. Save where otherwise provided in the Treaties, the following
provisions shall apply for the achievement of the objectives set out in Article 26. The European
Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and
after consulting the Economic and Social Committee, adopt the measures for the approximation of
the provisions laid down by law, regulation or administrative action in Member States which have
as their object the establishment and functioning of the internal market.

- The Commission is proposing the first-ever legal framework on AI, which addresses the
risks of AI and positions Europe to play a leading role globally.
- The AI act aims to provide AI developers, deployers and users with clear requirements and
obligations regarding specific uses of AI. At the same time, the regulation seeks to reduce
administrative and financial burdens for business, in particular small and medium-sized enterprises
(SMEs).
- The AI act part of a wider AI package, which also includes the updated Coordinated Plan on AI. Together,
the Regulatory framework and Coordinated Plan will guarantee the safety and fundamental rights of people
and businesses when it comes to AI. And, they will strengthen uptake, investment and innovation in AI
across the EU.
- The AI act will be the first-ever comprehensive legal framework on AI worldwide. The aim of the new rules
is to foster trustworthy AI in Europe and beyond, by ensuring that AI systems respect fundamental rights,
safety, and ethical principles. The AI act targets General-purpose AI also known as foundation models or
advanced generative AI. These AI systems can perform a wide range of functions and adapt to different
tasks. In the future, they might gain economy and societal relevance, and therefore need to be regulated by
proper safeguards, such as human oversight, transparency, and accountability.
- We call on EU institutions to ensure that AI development and use is accountable, publicly transparent, and
that people are empowered to challenge harms:
1.Empower affected people with a framework of accountability, transparency, accessibility and redress
2. Draw limits on harmful and discriminatory surveillance by national security, law enforcement and
migration authorities
3. Push back on Big Tech lobbying: remove loopholes that undermine the regulation
Why do we need rules on AI?
- The AI act ensures that Europeans can trust what AI has to offer. While most AI systems pose limited to no
risk and can contribute to solving many societal challenges, certain AI systems create risks that we must
address to avoid undesirable outcomes.

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- For example, it is often not possible to find out why an AI system has made a decision or prediction and
taken a particular action. So, it may become difficult to assess whether someone has been unfairly
disadvantaged, such as in a hiring decision or in an application for a public benefit scheme.
- Although existing legislation provides some protection, it is insufficient to address the specific challenges AI
systems may bring.
- The proposed rules will:
• address risks specifically created by AI applications;
• propose a list of high-risk applications;
• set clear requirements for AI systems for high risk applications;
• define specific obligations for AI users and providers of high risk applications;
• propose a conformity assessment before the AI system is put into service or placed on the market;
• propose enforcement after such an AI system is placed in the market;
• propose a governance structure at European and national level.

A risk-based approach

The Regulatory Framework defines 4 levels of risk in AI:

All AI systems considered a clear threat to the safety, livelihoods and rights of people will be
banned, from social scoring by governments to toys using voice assistance that encourages
dangerous behaviour.

High risk

AI systems identified as high-risk include AI technology used in:

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• educational or vocational training, that may determine the access to education and professional
course of someone’s life (e.g. scoring of exams);
• essential private and public services (e.g. credit scoring denying citizens opportunity to obtain a
loan);
• law enforcement that may interfere with people’s fundamental rights (e.g. evaluation of the
reliability of evidence);
• migration, asylum and border control management (e.g. verification of authenticity of travel
documents);
• administration of justice and democratic processes (e.g. applying the law to a concrete set of facts).

High-risk AI systems will be subject to strict obligations before they can be put on the market:

• adequate risk assessment and mitigation systems;

• high quality of the datasets feeding the system to minimise risks and discriminatory outcomes;
• logging of activity to ensure traceability of results;
• detailed documentation providing all information necessary on the system and its purpose for
authorities to assess its compliance;
• clear and adequate information to the user;
• appropriate human oversight measures to minimise risk;
• high level of robustness, security and accuracy.

All remote biometric identification systems are considered high risk and subject to strict
requirements. The use of remote biometric identification in publicly accessible spaces for law
enforcement purposes is, in principle, prohibited.

Narrow exceptions are strictly defined and regulated, such as when necessary to search for a
missing child, to prevent a specific and imminent terrorist threat or to detect, locate, identify or
prosecute a perpetrator or suspect of a serious criminal offence.

Those usages is subject to authorisation by a judicial or other independent body and to appropriate
limits in time, geographic reach and the data bases searched.

Limited risk

Limited risk refers to AI systems with specific transparency obligations. When using AI systems
such as chatbots, users should be aware that they are interacting with a machine so they can take
an informed decision to continue or step back.

Minimal or no risk

The AI act allows the free use of minimal-risk AI. This includes applications such as AI-enabled
video games or spam filters. The vast majority of AI systems currently used in the EU fall into this
category.

How does it all work in practice for providers of high risk AI systems?

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Once an AI system is on the market, authorities are in charge of market surveillance, users ensure
human oversight and monitoring, and providers have a post-market monitoring system in place.
Providers and users will also report serious incidents and malfunctioning.

Future-proof legislation

As AI is a fast evolving technology, the proposal has a future-proof approach, allowing rules to
adapt to technological change. AI applications should remain trustworthy even after they have been
placed on the market. This requires ongoing quality and risk management by providers.

Enforcement and implementation

The European AI Office, established in February 2024 within the Commission, oversees the
AI Act’s enforcement and implementation with the member states. It aims to create an
environment where AI technologies respect human dignity, rights, and trust. It also fosters
collaboration, innovation, and research in AI among various stakeholders. Moreover, it engages in
international dialogue and cooperation on AI issues, acknowledging the need for global alignment
on AI governance. Through these efforts, the European AI Office strives to position Europe as a
leader in the ethical and sustainable development of AI technologies.

European AI Office

The European AI Office will be the centre of AI expertise across the EU. It will play a key role in
implementing the AI Act - especially for general-purpose AI - foster the development and use of
trustworthy AI, and international cooperation.

The European AI Office will support the development and use of trustworthy AI, while protecting
against AI risks. The AI Office was established within the European Commission as the centre of
AI expertise and forms the foundation for a single European AI governance system.

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 The EU aims to ensure that AI is safe and trustworthy. For this purpose, the AI Act is the first-ever
comprehensive legal framework on AI worldwide, guaranteeing the health, safety and fundamental
rights of people, and providing legal certainty to businesses across the 27 Member States.

The AI Office is uniquely equipped to support the EU’s approach to AI. It will play a key role in
implementing the AI Act by supporting the governance bodies in Member States in their tasks. It
will enforce the rules for general-purpose AI models. This is underpinned by the powers given to
the Commission by the AI Act, including the ability to conduct evaluations of general-purpose AI
models, request information and measures from model providers, and apply sanctions. The AI
Office also promotes an innovative ecosystem of trustworthy AI, to reap the societal and economic
benefits. It will ensure a strategic, coherent and effective European approach on AI at the
international level, becoming a global reference point.

For a well-informed decision-making, the AI Office collaborates with Member States and the wider
expert community through dedicated fora and expert groups. These combine knowledge from the
scientific community, industry, think tanks, civil society, and the open-source ecosystem, ensuring
that their views and expertise are taken into account. Grounded in comprehensive insights of the
AI ecosystem, including advances in capabilities, deployment and other trends, the AI Office fosters
a thorough understanding of potential benefits and risks.

GenAI4EU

In January 2024, the Commission has launched an AI innovation package to support startups and
SMEs in developing trustworthy AI that complies with EU values and rules. Both the ‘GenAI4EU'
initiative and the AI office were part of this package. Together they will contribute to the
development of novel use cases and emerging applications in Europe's 14 industrial ecosystems,
as well as the public sector. Application areas include robotics, health, biotech, manufacturing,
mobility, climate and virtual worlds.

Tasks of the AI Office

Supporting the AI Act and enforcing general-purpose AI rules

The AI Office makes use of its expertise to support the implementation of the AI Act by:

• Contributing to the coherent application of the AI Actacross the Member States, including the
set-up of advisory bodies at EU level, facilitating support and information exchange
• Developing tools, methodologies and benchmarks for evaluating capabilities and reach of
general-purpose AI models, and classifying models with systemic risks
• Drawing up state-of-the-art codes of practice to detail out rules, in cooperation with leading AI
developers, the scientific community and other experts
• Investigating possible infringements of rules, including evaluations to assess model
capabilities, and requesting providers to take corrective action

• Preparing guidance and guidelines, implementing and delegated acts, and other tools to
support effective implementation of the AI Act and monitor compliance with the regulation

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 Strengthening the development and use of trustworthy AI

The Commission aims to foster trustworthy AI across the internal market. The AI Office, in
collaboration with relevant public and private actors and the startup community, contributes to this
by:

• Advancing actions and policies to reap the societal and economic benefits of AI across the
EU
• Providing advice on best practices and enabling ready-access to AI sandboxes, real-world
testing and other European support structures for AI uptake
• Encouraging innovative ecosystems of trustworthy AIto enhance the EU’s competitiveness and
economic growth
• Aiding the Commission in leveraging the use of transformative AI tools and reinforcing AI
literacy

Fostering international cooperation

At international level, the AI Office contributes to a strategic, coherent, and effective EU approach,
by:

• Promoting the EU’s approach to trustworthy AI, including collaboration with similar institutions
worldwide
• Fostering international cooperation and governance on AI, with the aim of contributing to a global
approach to AI
• Supporting the development and implementation of international agreements on AI, including
the support of Member States

To effectively carry out all tasks based on evidence and foresight, the AI Office continuously
monitors the AI ecosystem, technological and market developments, but also the emergence of
systemic risks and any other relevant trends.

Cooperation with institutions, experts and stakeholders

Collaboration with a diverse range of institutions, experts and stakeholders is essential for the work
of the AI Office.

At an institutional level, the AI Office works closely with the European Artificial Intelligence
Board formed by Member State representatives and the European Centre for Algorithmic
Transparency (ECAT) of the Commission.

The Scientific Panel of independent experts ensures a strong link with the scientific community.
Further technical expertise is gathered in an Advisory Forum, representing a balanced selection
of stakeholders, including industry, startups and SMEs, academia, think tanks and civil society.
The AI Office may also partner up with individual experts and organisations. It will also create
fora for cooperation of providers of AI models and systems, including general-purpose AI, and
similarly for the open-source community, to share best practices and contribute to the
development of codes of conduct and codes of practice.

The AI Office will also oversee the AI Pact, which allows businesses to engage with the
Commission and other stakeholders such as sharing best practices and joining activities. All this

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will be part of the European AI Alliance, a Commission initiative, to establish an open policy
dialogue on AI.

Further initiatives to foster trustworthy AI development and uptake within the EU are mapped on
the Coordinated Plan on AI.

Job opportunities and collaboration

The AI Office will soon start recruiting talents with a variety of backgrounds for policy, technical
and legal work and administrative assistance. External experts and stakeholders will have the
chance to join dedicated fora, and to support the work of the AI Office, through a separate call for
expression of interest.

Next steps

On 9 December 2023, the European Parliament and the Council reached a political agreement
on the AI Act. The AI Act will enter into force 20 days after its publication in the Official Journal,
and will be fully applicable two years later, with some exceptions: Certain prohibitions will take
effect after six months, while the provisions on General Purpose AI will be enforced after one year.
To facilitate the transition to the new regulatory framework, the Commission has launched the AI
Pact, a voluntary initiative that invites AI developers from Europe and beyond to comply with the
key obligations of the AI Act ahead of time.

Remote biometric identification: a technical & legal guide

Lawmakers are more aware than ever of the risks posed by automated surveillance systems which
track our faces, bodies and movements across time and place. In the EU's AI Act, facial and other
biometric systems which can identify people at scale are referred to as 'Remote Biometric
Identification', or RBI. But what exactly is RBI, and how can you tell the difference between an
acceptable and unacceptable use of a biometric system?

Through the Reclaim Your Face campaign, we have called to biometric mass surveillance practices
because of how they eliminate our anonymity, interfere with our enjoyment of public spaces, and
weaponise our faces and bodies against us. One of the main practices that amounts to biometric mass
surveillance is the use of ‘Remote Biometric Identification’ (RBI) systems in publicly-accessible spaces.
This includes parks, streets, shopping centers, libraries, sports venues and other places that the public
can enter, even if they have to pay to do so. RBI systems have been used by police, public authorities
or companies in most EU countries.

In a disappointing move in December 2022, EU digital ministers in the Council of the EU agreed a
position which would water down the AI Act’s proposed ban on RBI (despite dissent from Germany
and also reportedly from Austria). Worse still, their Council position could create a first step towards
a legal basis for these invasive and authoritarian practices, despite going against existing EU data
protection and human rights law. The European Parliament, however, are poised to adopt a much
more rights-protective approach. Throughout 2023, the Council and Parliament will negotiate until
they can agree a final position.

It is not always clear what constitutes RBI. In particular, the distinction between different biometric
systems and the definition of ‘remote’ have been points of confusion. This blog clarifies some key
differences to help lawmakers achieve an accurate, comprehensive ban on RBI in publicly-
accessible spaces in the AI Act.

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Part 1: According to EU law, not all biometrics use cases are the same
EU law distinguishes generally accepted uses of biometric data – like unlocking your smart
phone using your face or fingerprint – from unacceptable forms – like being tracked and
surveilled when you are walking through a public space. But laws designed to prohibit the
use of biometric data in ways that are unacceptably harmful need to be reinforced in response
to the almost exponential rise in the capacity and capabikity of algorithimic processing.

Which laws are relevant?

The General Data Protection Regulation (GDPR) and its policing counterpart, the Law
Enforcement Directive (LED) are the EU-wide rules on data protection. The GDPR clearly states
that the processing of biometric data (which is an essential part of facial recognition systems) is
in principle prohibited (Article 9), but may be allowed in certain, specific circumstances. This
applies to all private and public authorities except police.

For the police, the LED applies. The LED states that the processing of biometric data is sensitive,
and can only happen if it meets specific strict criteria, meaning that some uses are de facto
prohibited. Anyone processing biometric data must also be aware of how it can impact upon
other human rights that are enshrined in the EU Charter of Fundamental Rights, as well as
international human rights law.

Unlocking your phone using your biometrics

Unlocking your phone using your face, iris, fingerprint or other biometric feature is lawful so long
as it complies with rules on informed consent, the data are processed in a privacy-preserving and
secure manner and not shared with unauthorised third parties, and all other data protection
requirements are met. As a result, such a use case is exempt from the ban on the processing of
biometric data in General Data Protection Regulation (GDPR). The burden, of course, is on
whoever is deploying the system to show that it meets the criteria for exemption. If, for example,
people cannot truly give their free and informed consent for a use of biometric verification, then it
would not be lawful.

Walking through a public space where there are

facial recognition cameras
Being tracked in a public space by a facial recognition system (or other biometric system),
however, is fundamentally incompatible with the essence of informed consent. If you want or
need to enter that public space, you are forced to agree to being subjected to biometric
processing. That is coercive and not compatible with the aims of the GDPR, nor the EU’s human
rights regime (in particular rights to privacy and data protection, freedom of expression and
freedom of assembly and in many cases non-discrimination). This and similar practices are what
we mean when we talk about ‘biometric mass surveillance’ (BMS).

of algorithmic pro
Why do we need to go further than existing laws?
Despite a generally strong prohibition on processing biometric data in the GDPR, many providers
continue to use the exceptions or margins of interpretation in the GDPR to deploy systems which
are used in a way that amounts to mass surveillance. Dangerous systems are in use across the
EU, with data protection authorities chasing after them to try to stop them. Legislative clarity is
therefore urgently needed to make the prohibition of RBI in publicly-accessible spaces explicit,
and to prevent the future legalisation of these rights-violating practices.

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It is also notable that – due to concerns that biometric data may need to be more rigorously
controlled – the GDPR (Article 9, paragraph 4) specifically foresees the addition of additional
protections on sensitive biometric data. What’s more, the LED does not currently establish a
clear prohibition on the processing of biometric data, despite the even greater risks when police
use these systems.

What does the draft AI Act say?

The original proposal for an EU Artificial Intelligence Act in April 2021 proposed an in-principle
ban on RBI, but with significant caveats and loopholes:
1. It banned ‘real-time’ (live) uses of RBI systems, but not the far more common ‘post’
uses. This means that authorities could use RBI after the data is collected (hours,
days or even months after!) to turn back the clock, identifying journalists, people
seeking reproductive healthcare, and more;
2. It only applied the ban to law enforcement actors (i.e. police). As a result, we could all still
be surveilled in public spaces by local councils, central governments, supermarket
owners, shopping center managers, university administration and any other public or
private actors;
3. It also contained a series of wide and dangerous exceptions that could be used as a
“blueprint” for how to conduct biometric mass surveillance practices – undermining the
whole purpose and essence of the ban!

The draft law did not prohibit any other type of biometric system.

Real-time' vs 'post': what's the legal difference?

The distinction between ‘real-time’ biometric processing (the analysis happens live) compared to
‘post’ processing (the analysis happens at any point after the fact using previously captured
inputs, most frequently by using CCTV footage) is largely a technical/procedural distinction
relating to how the system has been set up.

In human rights terms, there is no salient difference between real-time and post RBI: the fear of
being pervasively watched and tracked, the disincentivisation of peaceful protests and many
forms of civic participation, the hesitation to express yourself and your identity. All of these rights
and freedoms can be disproportionately curtailed when we are subjected to biometric mass
surveillance. These threats are not reduced just because authorities or companies have extra
time to review footage.

In some cases, the infringement on people’s rights and threat to democracy can be even worse
when it comes to ‘post’ processing. The ability for governments, police, companies or malicious
entitites to use your highly-sensitive personal data to see where you went, what you did, with
whom you met etc over the course of weeks, months or even years, can have a profoundly
damaging impact on people’s rights. Just imagine how much harder it would be for journalists to
meet with sources, for people to feel comfortable accessing healthcare, legal advice or going to
LGBTQI+ venues.

Part 2: Technically, what’s the difference between biometric identification and

verification?

An important difference between the phone unlocking use case, compared to the public
surveillance one, is that the former relies on a technical process called ‘biometric
verification’. The latter, however, uses a technical process called ‘biometric identification’.
This difference is sometimes referred to as 1:1 matching (e.g. phone unlocking) and 1:n
matching (e.g. public surveillance).

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 Biometric verification Biometric identification

Compared only to own data Usually compared to the data of multiple people

No central database needed* Relies on some form of database

Individual in control Someone else usually in control

Sensitive data doesn’t go anywhere Sensitive data usually sent somewhere else

Part 3: How remote is the 'remote' in RBI?

Another distinction between phone unlocking versus public surveillance use cases is the
‘remoteness’ of the example. When you are unlocking your own phone, you are fully aware
of what you are doing. It is done one an individual basis, and ‘by’ you, rather than ‘to’ you.
Even if your face is a few centimeters away from your phone, you’re still present. Biometric
verification is therefore (at least in theory) not remote.

Remote uses of biometric identification, however, have the capacity to scan the face or other
bodily characteristics of anyone that comes into view – of a camera, a sensor, or a CCTV
feed. So although biometric identification is often referred to as 1:n (1-to-many matching),
it’s actually more accurate to think of remote biometric identification as n:n (many-to-many
matching). That’s because – even if only one person is being searched for – every single
person gets scanned.

Remote biometric identification, therefore, is always risky and violates your rights, because it
makes it possible that one or more persons will be surveilled, and that there is a potential that
they might not know it is happening. This precludes any possibility of being targeted against
a specific individual, and therefore constitutes generalised – or mass – surveillance.

Part 4: Our Recommendations

Of course, biometric systems aren’t bad per se. But biometric data are highly
sensitive (they can identify you permanently) and need to be properly protected. The
EU's AI Act constitutes a critical opportunity to draw a red line against the most
harmful uses of biometric systems.

In order to comprehensively protect people’s rights from the threat of biometric mass
surveillance, the AI Act should comprehensively prohibit all remote biometric identification
(whether done in real time or post ways) in publicly-accessible spaces, by any actor. There
must not be any exceptions: this would be like drilling a hole in a bucket, no matter how
small the hole.

Such an approach would not stop providers from developing or deploying biometric
verification systems, in accordance with existing rules in the GDPR or LED. And non-banned
biometric identification use cases which pose a significant threat to fundamental rights or

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 safety will have to comply with additional requirements for high-risk AI systems in the AI
Act.

See below for EDRi’s suggested amendments on RBI:

1. Improve Article 5(1) to sufficiently prohibit RBI

2. Improve the definition of an RBI system (Article 3(36))
3. Adding a recital to define 'remote'
4. Add new prohibitions relating to RBI in Article 5

Court of Justice of the European Union (CJEU)

Overview

• Role: Ensuring EU law is interpreted and applied the same in every EU

country; ensuring countries and EU institutions abide by EU law.
• Members:
o Court of Justice: 1 judge from each EU country, plus 11 advocates
general
o General Court: 2 judges from each EU country
• Established in: 1952
• Location: Luxembourg
• Website: Court of Justice of the European Union (CJEU)

The Court of Justice of the European Union (CJEU) interprets EU law to make sure it
is applied in the same way in all EU countries, and settles legal disputes between
national governments and EU institutions.

It can also, in certain circumstances, be used by individuals, companies or

organisations to take action against an EU institution, if they feel it has somehow
infringed their rights.

What does the CJEU do?

The CJEU gives rulings on cases brought before it. The most common types of case
are:

• interpreting the law (preliminary rulings) – national courts of EU countries

are required to ensure EU law is properly applied, but courts in different
countries might interpret it differently. If a national court is in doubt about the
interpretation or validity of an EU law, it can ask the Court for clarification. The
same mechanism can be used to determine whether a national law or practice
is compatible with EU law.
• enforcing the law (infringement proceedings) – this type of case is taken
against a national government for failing to comply with EU law. Can be
started by the European Commission or another EU country. If the country is
found to be at fault, it must put things right at once, or risk a second case
being brought, which may result in a fine.

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 • annulling EU legal acts (actions for annulment) – if an EU act is believed to
violate EU treaties or fundamental rights, the Court can be asked to annul it –
by an EU government, the Council of the EU, the European Commission or (in
some cases) the European Parliament.
Private individuals can also ask the Court to annul an EU act that directly
concerns them.
• ensuring the EU takes action (actions for failure to act) – the Parliament,
Council and Commission must make certain decisions under certain
circumstances. If they don't, EU governments, other EU institutions or (under
certain conditions) individuals or companies can complain to the Court.
• sanctioning EU institutions (actions for damages) – any person or company
who has had their interests harmed as a result of the action or inaction of the
EU or its staff can take action against them through the Court.

Composition

The CJEU is divided into 2 courts:

• Court of Justice – deals with requests for preliminary rulings from national
courts, certain actions for annulment and appeals.
• General Court – rules on actions for annulment brought by individuals,
companies and, in some cases, EU governments. In practice, this means that
this court deals mainly with competition law, State aid, trade, agriculture, trade
marks.

Each judge and advocate general is appointed for a renewable 6-year term, jointly
by national governments. In each Court, the judges select a President who serves a
renewable term of 3 years.

How does the CJEU work?

In the Court of Justice, each case is assigned 1 judge (the "judge-rapporteur") and 1
advocate general. Cases are processed in 2 stages:

• Written stage
o The parties give written statements to the Court - and observations can
also be submitted by national authorities, EU institutions and
sometimes private individuals.
o All of this is summarised by the judge-rapporteur and then discussed at
the Court's general meeting, which decides:
▪ How many judges will deal with the case: 3, 5 or 15 judges (the
whole Court), depending on the importance and complexity of
the case. Most cases are dealt with by 5 judges, and it is very
rare for the whole Court to hear the case.
▪ Whether a hearing (oral stage) needs to be held and whether an
official opinion from the advocate general is necessary.
• Oral stage – a public hearing
o Lawyers from both sides can put their case to the judges and advocate
general, who can question them.

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 o If the Court has decided an Opinion of the advocate general is
necessary, this is given some weeks after the hearing.
o The judges then deliberate and give their verdict.
• General Court procedure is similar, except that most cases are heard by 3
judges and there are no advocates general.

Areas of EU action
The European Union can only act in those areas where its member countries have
authorised it to do so, vi Areas of EU action
The European Union can only act in those areas where its member countries have
authorised it to do so, via the EU treaties. The treaties specify who can pass laws in
what areas: the EU, national governments or both.in what areas: the EU, national g

3 principles determine how and in what areas the EU may act:

• conferral – the EU has only that authority conferred upon it by the EU treaties,
which have been ratified by all member countries
• proportionality – the EU action cannot exceed what is necessary to achieve
the objectives of the treaties
• subsidiarity – in areas where either the EU or national governments can act,
the EU may intervene only if it can act more effectively

Only EU can legislate: In certain areas, the EU alone is able to pass laws. The role
of member countries is limited to applying the law, unless the EU authorises them to
adopt certain laws themselves. In these areas, the EU has what the treaties
call exclusive competences:

• customs union
• competition rules for the single market
• monetary policy for the eurozone countries
• trade and international agreements (under certain circumstances)
• marine plants and animals regulated by the common fisheries policy

EU or national governments can legislate: In certain areas, both the EU and

member countries are able to pass laws. But member countries can do so only if the
EU has not already proposed laws or has decided that it will not. In these areas, the
EU has what the treaties call shared competences:

• single market
• employment and social affairs
• economic, social and territorial cohesion
• agriculture
• fisheries
• environment
• consumer protection
• transport
• trans-European networks
• energy
• justice and fundamental rights
• migration and home affairs

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 • public health (for the aspects defined in Article 168 of the Treaty on the
Functioning of the European Union)
• research and space
• development cooperation and humanitarian aid

Member countries legislate, EU helps: In certain areas, the EU can only support,
coordinate or complement the action of member countries. It has no power to pass
laws and may not interfere with member countries’ ability to do so. In these areas,
the EU has what the treaties call supporting competences:

• public health
• industry
• culture
• tourism
• education and training, youth and sport
• civil protection
• administrative cooperation

EU plays special role

In certain areas, special competences enable the EU to play a particular role or to

go beyond what it is normally allowed under the treaties:

• coordination of economic and employment policies

• definition and implementation of the Common Foreign and Security Policy
• the ‘flexibility clause’, which under strict conditions enables the EU to take
action outside its normal areas of responsibility

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