AI has become a central topic in the EU’s digital regulation agenda. The European Commission has repeatedly emphasized the need to foster the adoption of AI technologies in the EUFootnote 1 through recent legislative reforms such as those dealing with the EU data protection framework.Footnote 2 Policies aimed at various facets of the European digital single market also included provisions focused on AI.Footnote 3 These provisions coexist with the apparent crown jewel of the EU regulatory approach, the AI Act,Footnote 4 a horizontal legal instrument that intends to foster the adoption of safe, trustworthy, and human-centric systems in the EU.
The AI Act was initially proposed in April 2021 and is currently undergoing the final steps of the ordinary legislative procedure. It reflects a two-pronged EU AI strategy that seeks to turn the EU into a “world-class AI hub” to ensure the safety and trustworthiness of AI systems used within the Union.Footnote 5 The EU regulatory framework for AI is expected to follow a value-based approach within this scheme. More than that, it is expected to promote European values worldwide.Footnote 6 However, the development of AI technologies is primarily led by corporations based, for the most part, outside the EU.Footnote 7 How is a legal instrument internal to the EU legal order supposed to have a global impact on the spread of EU values for AI governance?
One of the mechanisms posited for that global influence is the so-called Brussels Effect.Footnote 8 Because the EU single market comprises hundreds of millions of consumers with considerable spending power and, given the interests of those companies who attend to these consumers, access to that market is extremely attractive to businesses. This attractiveness means that, under certain circumstances, companies might cater to stringent EU standards in their global operations while other jurisdictions might pattern their own rules after the EU approach. Given the peculiarities of AI-related markets, there has been some debate about whether the AI Act will deliver the Brussels Effect.Footnote 9
In this Article, we argue that the AI Act’s likely Brussels Effect creates the risk of a strong side effect: that is, the spread of the Act as a regulatory template for the world might undermine many of the European values the EU AI strategy is meant to promote. On the policy side, the risk of a Brussels Side Effect maps an internal tension within EU digital policy because promoting the AI Act as a global standard is likely to also spread many of the shortcomings associated with the EU regulatory approach. On the theoretical side, our argument complicates one of the Brussels Effect's tenets: that the EU can set global regulatory agendas because EU regulation is strict. While there is little reason to doubt that stringency contributes to the occurrence of a Brussels Effect, the risk of a side effect in the AI Act suggests that success in spreading the form of EU law may play against some of the policy goals the said effect is expected to promote.
To make these interconnected points, the Article proceeds as follows. In Part A, we provide an overview of the AI Act, showing that some aspects were designed to increase the probability of a Brussels Effect in AI governance. However, the overall regulatory arrangement has considerable limitations when it comes to the protection of fundamental rights, democracy, and the rule of law. In Part B, we argue that these shortcomings will likely be spread globally; these issues are not sufficient to prevent the emergence of a Brussels Effect for the AI Act. And, as the shortcomings of the AI Act gain global traction, this success in exporting regulatory standards can lead to a reduced level of fundamental rights protection. Such a concern is particularly salient in the context of the Council of Europe’s (CoE) proposed convention on human rights, democracy, and the rule of law, which we examine in Part C. While the convention could provide an escape valve to the limits of the AI Act regarding fundamental rights, the EU’s current position in CoE negotiations threatens this potential by shaping the convention into a vehicle for the diffusion of the AI Act approach. Therefore, the pursuit of a Brussels Effect in AI is put before the values the effect is expected to promote. Finally, we conclude the Article with some remarks on the impacts of this phenomenon on AI regulation and the study of the Brussels Effect.
A. The EU Approach to AI Regulation
As mentioned above, AI regulation in the EU is a two-headed beast. On the one hand, it follows the market imperative at the core of the European project: the AI Act is expected to create a single market for AI,Footnote 10 preventing market fragmentation and supplying market actors with the legal certainty they need to operate in all 27 EU Member States.Footnote 11 On the other hand, it is a value-laden instrument that restricts access to the EU single market to “trustworthy” AI systems compliant with Union values, notably those that protect fundamental rights.Footnote 12 The text of the AI Act reflects a balance between those two aims.
In crafting such a balance, the EU must observe certain constraints. Some of these constraints are constitutional: unlike a sovereign state, the EU can only legislate within the limits of the competencies conferred on it by its Member States.Footnote 13 Most of these competencies are sector-specific, allowing the EU to act in a specific domain, such as environmental protection or antitrust. But, given its goal of avoiding market fragmentation, the AI Act is designed as a horizontal instrument; that is, it is a regulation that applies to all AI systems.Footnote 14 And the protection of fundamental rights does not, in itself, provide a basis for EU legislation.Footnote 15 As a result, the AI Act shoehorns the protection of fundamental rights into the most general legal basis available for legislation: Article 114 of the TFEU.Footnote 16 This provides a general competence for approximating rules on the internal market.Footnote 17
To the extent that the AI Act relies on EU competence to regulate the single market,Footnote 18 it must be framed as an instrument that promotes market integration.Footnote 19 While the EU has a vast repertoire of approximation measures, the AI Act settles upon a specific method: product safety regulation.Footnote 20 By adopting this frame, the EU can benefit from decades of expertise with previous product safety instruments, which have become a global standard.Footnote 21 And, by drawing upon the mechanisms for EU-wide coordination in product risks, the EU can—at least in theory—avoid the enforcement issues currently plaguing its data protection framework.Footnote 22 The AI Act is, therefore, a reasoned response to the goals and constraints of EU AI strategy.
In the following pages, we overview how the EU adapted its product safety approach to AI and then discuss some of the shortcomings of that approach. These shortcomings hinder the pursuit of goals beyond the original product safety framework, particularly those connected to fundamental rights protection. Hence, the AI Act, despite its horizontal ambitions, is not sufficient to address the value-setting ambitions of EU policy.
I. The AI Act in a Nutshell
All product regulations require a clear definition of the target product, and the AI Act is no different. In line with a growing international consensus,Footnote 23 the Act’s main regulatory target is AI systems, which is defined as a machine-based system,Footnote 24 designed to operate with a certain degree of autonomy and potentially adapting itself after deployment, that generates outputs such as predictions, recommendations, or decisions, based on objectives supplied either explicitly or implicitly to the system.Footnote 25 Some of the Act’s provisions specify the technical requirements of these systems. Others lay down obligations for the various actors involved in placing these systems on the EU market, putting them into service, or using them. But all these obligations are cast in terms of the AI system perceived as a discrete product.
The AI Act relies on a risk-based approach to govern such AI systems. Under the proposed framework, risks are subject to a top-down classification in which the EU legislator defines three categories of risks and specifies which applications of AI fall into each category.Footnote 26 Utilizing a precautionary approach, some applications of AI are prohibited because the risks they pose to individuals’ health, safety, and fundamental rights are deemed unacceptable.Footnote 27 Most other AI systems are not considered to pose a substantive risk by the mere virtue of their intended application.Footnote 28 The AI Act does not introduce specific rules for such systems,Footnote 29 leaving their governance to voluntary codesFootnote 30 and sector-specific legislation such as the General Product Safety Regulation.Footnote 31 Instead, it devotes most of its substantive provisions to applications deemed to pose a high risk to health, safety, and fundamental rights.Footnote 32
High-risk AI systems are governed by rules derived from the New Legislative Framework for product safety.Footnote 33 Under such an approach, the providersFootnote 34 of AI systems must ensure that the system meets specific technical requirements before being allowed into the EU single market, put into service, or otherwise used.Footnote 35 The providers themselves usually evaluate conformity with such requirements through internal controls, but external assessment may sometimes be required.Footnote 36 Even if internal controls are sufficient de jure, providers might find themselves de facto required to rely on external forms of validation, such as certification mechanisms or conformity to harmonized technical standards set by the CommissionFootnote 37 in order to ensure full coverage of the legal requirements, which provide abstract descriptions of the outcomes the technical measures must ensure.
In the original Commission text, the risk profile of an AI system is based on its intended application. However, such an arrangement is ill-suited to models that can be used for various tasks, such as the large language models popularized in 2023.Footnote 38 This inadequacy follows from the fact that the said models were intended as components for other AI systems. For example, it has been suggested that systems such as ChatGPT can be used by public-sector bodies as components to build their own systems for automating interactions with citizens.Footnote 39 In such circumstances, the provider of the AI system would be the legal or natural person who repurposes this general system for a specific purpose. However, that provider might lack the means to effect technical changes on the tools they use.Footnote 40 Therefore, the effectiveness of the technical requirements described above would be contingent on the technical decisions made by the provider of the general-purpose system used in a high-risk application, which seldom accounts for all the risks in a particular high-risk context.
To address these shortcomings, both the Council General ApproachFootnote 41 and the political compromise arrived at by the European ParliamentFootnote 42 agreed on the need to adopt specific rules for AI systems without a narrowly-defined purpose.Footnote 43 In the AI Act’s final compromise text, these systems are subject to a special legal framework defined in Title VIIIA. Just like the EU approach to AI systems with a defined purpose, the framework for general purpose AI systems relies on the application of different regulatory obligations in accordance to an ex ante classification of risk. All general purpose AI systems are subject to the information disclosure requirements outlined in Article 52c AI Act, but some systems deemed to create “systemic risk” are subject to duties regarding the evaluation of such risks and accountability to external actors (Articles 52d and 52e AI Act). Once again, the AI Act directs the bulk of its obligations and enforcement mechanisms towards a small set of systems that are seen as the most critical sources of risk.
Conformity to ex ante requirements addresses the risks anticipated during system design. However, some issues might not be detected beforehand, while others might result from use. To address these gaps in risk response, providers are expected to develop a system of risk management practices for their AI systemFootnote 44 and collect information about it once it comes into the EU market.Footnote 45 Providers must take corrective measures or face penalties such as fines or the loss of access to the EU market if any risks are detected—either through the provider’s monitoring practices or by the action of market surveillance authorities.Footnote 46 So, the AI Act tackles the risks associated with AI throughout the entire life cycle of AI systems, from their design to the end of their operation.
II. The Limits of the AI Act
The outline in subheading I above suggests that the AI Act is in an excellent position to achieve the goals that prompt its adoption.Footnote 47 Its reliance on a product safety framework provides legal certainty, as the providers can rely on the expectations built with previous product safety lawsFootnote 48 to which they are already subject in many cases.Footnote 49 The extension of that framework to cover risks to fundamental rights addresses many of the concerns raised by AI applications, especially, but not exclusively, in the public sector.Footnote 50 Nonetheless, the AI Act has been subject to extensive critique by scholarsFootnote 51 and civil society organizations.Footnote 52 Why is that?
A complete presentation of the critiques of the AI Act would exceed this Article’s scope. But, for our argument, it is essential to highlight the tension between the fundamental rights aims built into the AI Act’s framework and the product safety instruments used to pursue these goals.Footnote 53 Within product safety legislation, the risk associated with an adverse event can be calculated, at least in principle, if one measures the likelihood of the event and its resulting severity; the value of the risk is the product between these two quantities.Footnote 54 Such a definition is ill-suited to capture various risks to fundamental rights, such as those affecting dimensions of fundamental rights that are not amenable to computational representationFootnote 55 or those stemming from the cumulative harmful effects of practices that are not very harmful in and of themselves.Footnote 56 Therefore, the AI Act’s formula of protecting fundamental rights through the same mechanisms used to address health and safety risks introduces a new risk: that important forms of harm to these rights end up neglected.
Another line of concern focuses on the actual rules applied to AI systems. While the rules for high-risk AI are extensive, they are formulated in abstract terms. Consequently, their implementation requires extensive interpretation efforts by the providers of AI systems, who become de facto responsible for determining how the legal requirements are converted into software requirements.Footnote 57 In doing so, they face a technical challenge: expressing the relevant legal requirements as software. Such an expression might be feasible for legal rules that demand little interpretation, but fuzzier rules and legal principles are not so easily represented in computer code.Footnote 58 And, because many AI systems are large-scale systems,Footnote 59 changing them to fix errors in representation—or to cope with changes in the law—can be a slow process.Footnote 60 Reliance on technical measures may thus entrench arbitrary or even wrongful interpretations of the law by the providers of AI systems.Footnote 61
The AI Act includes a few mechanisms that may provide guidance and avoid arbitrary interpretation by providers, such as the (currently narrow) requirements for external certification and the pervasive role that harmonized standards play in evaluating compliance with the Act.Footnote 62 Still, reliance on external actors also has its issues. Technical standards and certification schemes are both produced by private bodies,Footnote 63 in which deliberations are framed in technical language and are seldom open to the general public.Footnote 64 As a result, there are considerable doubts about whether standard-setting organizations and other technical bodies are legitimate parties for specifying norms directed at protecting fundamental rights, coming, as they do, from external observers and technical decision-makers.Footnote 65
If these and other critiques hold, protecting fundamental rights through the AI Act’s product safety framework might be ineffective. The Act might fail to respond to issues that cannot be easily framed in the kind of quantified risk product safety thrives in, and it might fail to address all dimensions of the risks it does detect. Furthermore, opaque private actors’ outsized role in codifying fundamental rights means that the AI Act may produce negative outcomes for other public interests, such as democratic governanceFootnote 66 and the rule of law.Footnote 67 The AI Act, meant to protect the EU from the risks associated with AI technologies, may itself run against many values the EU is expected to uphold.Footnote 68 And, in doing so, the Act undermines one of its stated purposes.
B. The AI Act as a Global Standard?
Part A situated the AI Act and its potential shortcomings within the EU legal order. However, the Act is not solely directed at producing results within the EU single market. Instead, as discussed in the introduction, it is expected to position the Union as a global leader in AI. Is such leadership possible if the AI Act provides insufficient protection for fundamental rights and other public values?
At first glance, the answer to this question might seem to be “no.” One of the necessary conditions for the Brussels Effect is that the regulation must be stringent, such that compliance with it is sufficient to meet the demands of other jurisdictions. Because sovereign states can establish norms to address fundamental rights directly—and, indeed, are currently doing soFootnote 69 —providers of AI systems would need to adopt additional measures to cope with those fundamental rights requirements that cannot be cast in terms of product safety standards. While such a conclusion is reasonable in light of our previous discussion, current analyses of the AI Act lead us to sustain, in Part B, subheading I, that a Brussels Effect might happen nonetheless. The limits of the AI Act regarding fundamental rights protection are less salient in some applications, and the other requirements for such an effect are still present. So, the AI Act might become a global standard despite shortcomings in the product safety framework as a guardian of fundamental rights.
However, success in spreading the AI Act’s regulatory framework does not automatically lead to success in setting the European approach to AI as a global standard. In Part B, subheading II, we argue that the opposite is true. Any Brussels Effect from the AI Act will likely produce a side effect, spreading around the world norms that pay insufficient attention to the values the EU is founded on.Footnote 70 As other jurisdictions pattern their laws after the AI Act, they will adopt a model that, as seen in Part A, does not cover all the dimensions of fundamental rights and public interests it is meant to. Furthermore, the global adoption of an insufficient standard of value protection may come back to haunt the EU; for example, by restricting the possibility of fixing the AI Act’s deficits through international treaties. Under these circumstances, spreading the letter of EU AI regulation can constrain the EU’s ability to shape the values guiding the adoption of AI at the European and global levels.
I. The AI Act’s Potential Brussels Effect
From the onset, the AI Act was designed with its worldwide effects in mind.Footnote 71 Such a global concern reflects the Commission’s ambitions regarding the positioning of the EU,Footnote 72 with its previous experiences on the impact of EU digital regulation on the laws of other jurisdictions and international treaties, as a global leader.Footnote 73 While the EU cannot force other jurisdictions to follow its lead, it can sway their regulatory approaches through various mechanisms. Some of those involve bilateral or even multilateral action, as is the case of the CoE convention on AI we examine in Part C. But, under certain circumstances, the EU can also exercise unilateral influence via the Brussels Effect.Footnote 74
The Brussels Effect is a market-based mechanism for regulatory exportation. Through soft coercion enabled by its strong internal market, the EU often spreads its regulatory standards, even if its trade partners do not favor those.Footnote 75 In its original formulation, the Brussels Effect was mainly seen as a de facto phenomenon in which companies comply with EU standards—even when formally subject to less strict ones—because economic factors push them to do so.Footnote 76 But it can also take a de jure form as other jurisdictions emulate the EU regulatory approach due to corporate lobbying,Footnote 77 political pressures to catch up with technological change, or other factors.Footnote 78 Either way, scholarship on EU regulation has identified five conditions that must be met for policy diffusion through the Brussels Effect.Footnote 79
If the AI Act is to produce a Brussels Effect, market size is vitally important.Footnote 80 Based on available evidence, the EU is likely to be a large market for AI systems. The substantial population covered by the EU single market and its wealth make it incredibly attractive to providers of consumer goods based on AI. Similarly, large online platforms are unlikely to forgo access to the millions of users based in EU Member States.Footnote 81 The EU also offers substantial markets for AI systems marketed for business uses and public sector applications.Footnote 82 Because conformity with the AI Act is a prerequisite for selling AI systems in the EU single market, the risk of being pushed out of it will likely be salient for providers of AI systems who operate globally.
It is also relatively straightforward to show that the AI Act meets the second requirement for a Brussels Effect: regulatory capacity. Footnote 83 Because AI is a novel technology that has undergone significant developments in the last few years,Footnote 84 there is little established knowledge on how to regulate AI systems. The EU adopted two strategies to mitigate this general ignorance. First, it worked to develop extensive expertise in AI. AI technologies were a focal topic in the reform of EU data protection law in the mid-2010s.Footnote 85 The AI Act was preceded by the work of a high-level expert group formed by people from academia and industry,Footnote 86 and national and EU bodies hired AI experts.Footnote 87 Second, reliance on the product safety framework allows the EU to transpose decades of expertise in interpretation and enforcement to the AI Act rather than having to create an entirely new set of institutions and practices.Footnote 88 As such, few jurisdictionsFootnote 89 have the technical and institutional capabilities available to the EU for AI regulation.Footnote 90
A Brussels Effect for the AI Act also requires stringency.Footnote 91 If EU standards are more demanding than those of other jurisdictions, compliance with the former is likely enough for the latter. Here, the AI Act stands on less solid ground. Regarding systems that are neither prohibited nor classified as high-risk, the AI Act does not establish a comprehensive legal framework, mostly limiting itself to disclosure requirements, such as those that cover certain application under Article 52 of the Act. However, some jurisdictions have proposed stricter rules for particular applications, such as online recommender systems.Footnote 92 Others have proposed additional rules for non-high-risk AI, which often rely on mechanisms beyond the technical requirements imposed by the AI Act.Footnote 93 Therefore, conformity with the AI Act might not be sufficient to ensure that a low-risk AI system complies with the laws of any potential jurisdiction.
By contrast, the AI Act adopts stringent approaches both for high-risk AI systems and for general purpose AI systems with a systemic risk.Footnote 94 But, as discussed in Part A, subheading II, some of the public interest concerns driving AI are not covered by a product safety framework, as is the case for important dimensions of fundamental rights. Any third-country legislation that directly touches upon issues not covered by the AI Act will thus create requirements that go beyond the EU requirements. As of February 2024, there are a few domains in which the AI Act can be said to be more stringent than the practices of other jurisdictions: its new rules for general purpose AI systems with systemic risk, its prohibition of some categories of AI systems under Article 5, and for high-risk AI systems, in the regulation of issues that are already covered by the product safety framework. Accordingly, a Brussels Effect is more likely when it comes to these aspects of the AI Act.
An additional requirement for a Brussels Effect is that regulation must be directed at an inelastic target: a product or producer that must be tied to a regulatory regime regardless of its characteristics.Footnote 95 In the case of the AI Act, it is possible to identify two different forms of elasticity. The first one concerns its scope. If providers could simply provide their AI systems from outside the EU, they would have little incentive to comply with a more stringent framework, let alone extend it worldwide. But the AI Act curtails this possibility through a territorial extension mechanism,Footnote 96 which makes its provisions applicable to any AI system that has its outputs within the EU, even if its providers—or even users—are based in a third country.Footnote 97 In theory, nothing prevents a provider from leaving or entering the EU market altogether, but the market size outlined above might prove too tempting for most large-scale providers.Footnote 98 And, once the decision to join the EU single market is made, providers have minimal room for manoeuvre to avoid the Act’s scope.Footnote 99 Providers of AI systems used within the EU, or towards persons based in the EU, cannot dodge the AI Act as a whole.
A second form of elasticity might happen within the AI Act’s framework. Once a system is subject to the Act, it is assigned to one of the three regulatory frameworks presented in Part A, subheading II, or classified as a general purpose AI system. It might also be subject to additional rules targeted at specific classes of systems.Footnote 100 However, providers can avoid the rules applicable to high-risk AI systems if they declare that their particular system does not pose a high level of risk to the values protected by the AI Act.Footnote 101 This exemption does not require the provider to pursue an external assessment or have their decision ratified by an authority,Footnote 102 but it must follow the guidelines present on Article 6(2a) AI Act and any subsequent criteria specified by the Commission under the powers delegated to it. Contrastingly, the definition of a general purpose AI system in Article 3 AI Act only features narrow exclusions from its scope. The systemic risk label, as defined in Article 52a AI Act, also does not afford much flexibility to the provider, as is entirely determined by external evaluation, which can come either from a decision by the Commission or from the application of pre-defined thresholds such as the number of compute operations used to train an AI system. The result of these changes is that the classification of a system as a high-risk system is elastic, but only to some extent, and the rules for general purpose AI systems are much less so.
Finally, the Brussels Effect also requires non-divisibility of the regulated object.Footnote 103 If providers can create separate AI systems for the EU market, they do not need to comply with EU standards in other jurisdictions. This non-divisibility is entirely absent from the regulation of prohibited AI systems, as providers can continue commercializing these systems in jurisdictions that allow them to do so.Footnote 104 Some lawful applications, such as AI systems made for the public sector and other tailor-made applications, are also amenable to segmentation, as these products are already highly differentiated for their customers.Footnote 105 Therefore, AI markets such as those are unlikely to see a substantial Brussels Effect.
Still, the current approaches to AI promote non-divisibility in other applications. Most current advances in AI technologies, especially those concerning general purpose AI models, rely on machine learning systems that require vast amounts of data and extensive computing capabilities for their training and use.Footnote 106 Only a few economic actors have the resources necessary to create such systems.Footnote 107 As a result, most AI providers build their AI systems compositionally, starting their work from components or even fully-trained models offered by these large-scale providers,Footnote 108 who effectively become suppliers of digital infrastructure.
The compositional construction of AI technologies reinforces the AI Act’s likelihood of avoiding divisibility. To the extent that AI technologies rely on centralized infrastructures, including general-purpose AI systems,Footnote 109 they preclude smaller providers from spinning off EU-specific versions of their products. Even large providers might find the costs of maintaining an EU-specific version of their technical infrastructure excessive. Market segmentation might be a financially unsound move in those cases because creating EU-specific products is more expensive than global compliance with EU law requirements. Similarly, this reliance on components and general-purpose AI tools promotes non-divisibility within the EU market as low-risk AI systems built with general-purpose tools will comply with some of the tool’s technical requirements.Footnote 110
Based on the overview above, we agree with those studies that suggest a limited Brussels Effect for the AI Act.Footnote 111 Market factors alone are insufficient to globalize the EU prohibition of certain uses of AI or, indeed, its rules on AI systems falling outside the more strictly regulated classes of AI systems. Even within the latter categories, the spread of EU standards depends on the possibility of product differentiation and the extent to which the product safety framework addresses relevant regulatory concerns. Yet the technical complexity involved in governing AI increases the difficulty of identifying—at least ex ante—situations in which other standards are more stringent than the EU approach. Therefore, the EU standard for high-risk AI will likely shape the governance of these applications worldwide. But, as we shall see, this success in spreading the AI Act framework comes at a price.
1. The Risk of a Brussels Side Effect
Briefly, a Brussels Effect for the AI Act will produce a noticeable side effect: a reduced level of protection of these values that cannot be framed as product safety requirements. The global diffusion of AI safety standards based on the AI Act offers insufficient protection for values such as fundamental rights, democracy, and the rule of law. Even worse, standards based on the AI Act can introduce new risks to these values by imposing norms guided by a restrictive view of them. If these shortcomings of the AI Act are not addressed during its legislative process, the Brussels Effect can lead to a global weakening of values that are dear to the EU legal order.
We postulate that because of the mechanisms through which the global diffusion of standards is based, the AI Act might weaken the protection of fundamental rights, the rule of law, and other high-level democratic values. First, the aforementioned side effect can be produced de facto through compliance with the AI Act’s technical requirements. Most technical requirements, such as those formulated through technical standards, supply an extensive list of factors that must be observed in their implementation.Footnote 112 Given the EU’s reputation for stringent regulation, providers, users, and the general population will likely believe that conformity with a standard or certification scheme that complies with the AI Act is sufficient to protect fundamental rights and other values.Footnote 113 Yet Part A, subheading II, suggests that such an assumption can break down if the values are formulated in general terms or are not amenable to translation into software rules. Suppose the providers of AI systems are, nonetheless, expected to comply with the product safety requirements imposed by the AI Act. In that case, those fuzzier regulatory goals that escape the product safety framework are likely to be deprioritized in the software design process. Consequently, risks to values not covered by the AI Act might only be detected once they have materialized into harm to individuals and social groups.
Adverse consequences may also emerge from the de jure form of the Brussels Effect. However, such an occurrence is less likely than the abovementioned de facto variant. Most jurisdictions are not subject to the competence constraints that led the EU to frame the AI Act as a product safety instrument. Accordingly, they have the power to adopt other approaches to regulation or supplement product safety regulation with rights-based instruments or other regulatory tools.Footnote 114 However, most forms of AI regulation proposed so far rely extensively on technical knowledge and resources,Footnote 115 which can be in short supply in many jurisdictions.
On the one hand, this technical scarcity might prompt some jurisdictions to adopt regulations more in line with their existing capabilities.Footnote 116 On the other hand, some jurisdictions might outsource the management of regulatory complexity to the EU.Footnote 117 So, legislators worldwide might find themselves replicating the advantages and shortcomings of the AI Act even if they could theoretically do otherwise.
Should the possibility of external side effects from the AI Act be considered in its legislative procedure? A political realist might point out that the EU acts within its powers if it enacts a product safety regulation and has neither the power nor the duty to care about the implications outside the Union’s borders. Such a position, however, would be at odds with the EU’s constitutional duty to promote European values in its relations with the wider world.Footnote 118 And, specifically in the case of the AI Act, it would clash with the stated policy goal of using AI regulation as a vehicle for the global promotion of European values.Footnote 119
Therefore, the Brussels Side Effect postulated in this Article’s title emerges from the peculiar configuration of the AI Act. Given the internal requirements of AI law, the AI Act was shoehorned into a product safety framework. This framework fails to attend to values the EU is constitutionally required to observe, such as respect for democracy, the rule of law, and fundamental rights.Footnote 120 It is nonetheless likely to become a global standard, at least for general purpose AI systems and for high-risk applications, to the extent that the market on AI technologies satisfies the conditions for a Brussels Effect. Under these circumstances, the EU’s ambition of spreading a European approach to AI is derailed by its success in exporting regulatory standards to the world.
C. AI Regulation Between the EU and the Council of Europe
While the EU pioneered the idea of a comprehensive approach to AI regulations, other jurisdictions and international organizations also crafted their approaches.Footnote 121 As of 2024, one of the most advanced proposals was the one formulated by the Council of Europe (CoE), an international organization formed by forty-six member States, including all of the EU’s member States. Because of this direct overlap between the EU’s territorial scope and the potential parties of a CoE treaty on AI, we now turn our analysis to the CoE’s proposal and its interactions with the AI Act.
Since its foundation in 1949, the CoE has acted to protect human rights in Europe. Its activities aim to protect and promote its three pillars: Human Rights, Democracy, and the Rule of Law.Footnote 122 For these purposes, the CoE carries out various activities, notably the elaboration of treaties on topics that affect one or more of these pillars. It is in this capacity that the CoE enters the domain of AI regulation.
Given the potential impact of AI technologies on human rights, democratic values, and the rule of law, the CoE set up an ad hoc Committee on Artificial Intelligence in 2019. This committee, grounded on the Human Rights pillar of the CoE’s competencies,Footnote 123 was set up to examine the feasibility and the potential elements of a convention to deal with the new and future threats posed by AI systems.Footnote 124 The main result of this work, delivered by the end of 2021, was a feasibility study of a legal framework for the development, design, and application of AI based on the CoE’s three pillars.Footnote 125
After delivering this feasibility study, the ad hoc committee was substituted by a new advisory body, the Committee on Artificial Intelligence (CAI). The new committee was meant to follow up on the previous work and draft an “appropriate legal instrument on the development, design, and application of AI systems based on the CoE’s standards on human rights, democracy, and the rule of law, and conducive to innovation, in accordance with the relevant decisions of the Committee of Ministers.”Footnote 126 The addition of “innovation” as a guiding concern for CAI suggests that the resulting instrument is expected to tackle a problem that also appears in the AI Act:Footnote 127 how to foster the adoption of AI technologies while protecting fundamental public interests.Footnote 128
In December 2023, the CAI decided to publish a “Draft Framework Convention” of its intended Convention on AI, Human Rights, Democracy, and the Rule of Law.Footnote 129 This publication was accompanied by a disclaimer that the draft “does not preclude the final outcome of negotiations in the CAI.”Footnote 130 Still, the published text suggests some convergences and divergences between the CAI’s view of how to regulate AI and the EU’s approach to the AI Act.
The similarities cover essential aspects of both proposals. Beyond the similarity in the formulation of CAI’s goals and those guiding the AI Act, they also adopt similar framings to the object of the regulation. The CAI text stipulates that AI regulation is directed at “activities within the lifecycle of artificial intelligence systems”,Footnote 131 which could potentially “interfere with human rights, democracy and the rule of law”.Footnote 132 Both instruments establish substantive requirements for protecting human and fundamental rights,Footnote 133 which apply to the uses of AI systems in the public and private sectors.Footnote 134 They both propose horizontal rules for AI that coexist with other legal instruments; for example, the CoE has treaties on data protectionFootnote 135 and cybercrime,Footnote 136 while the AI Act coexists with EU data protection lawFootnote 137 and recent regulations on the digital single market, such as the Digital Markets ActFootnote 138 and the Digital Services Act.Footnote 139 Similar needs and concerns introduced much convergence between the EU and the CAI’s approach to AI regulation.
Yet, the divergences between both approaches might be even more substantial. As we have seen in Part A, the AI Act adopts a risk-based approach with a clear focus on high-risk AI systems. By contrast, the CAI approach combines a risk-based approach with principle-based elements,Footnote 140 which allows it to specify a genuinely horizontal method by setting up principles that apply to all AI applications within its scope. This is not to say that the CAI ignores risk judgements entirely, as it includes obligations for a risk management framework.Footnote 141 However, risk classification in the CAI proposal happens after determining the applicable rules,Footnote 142 whereas the AI Act approach looks at risks before determining the applicable regulatory regime for an AI system.
Another distinction between the AI Act and the Draft Framework Convention comes from the values protected by each approach. While the AI Act claims to pursue various public interests,Footnote 143 such as the protection of fundamental rights, democracy, and the rule of law, it mostly does so by appending these values to product safety provisions that require providers to address risks to health and safety. Instead, the Draft Framework Convention includes general principles such as equality, non-discrimination,Footnote 144 human dignity, privacy, accountability, transparency and oversight, safe innovation, inclusive democratic processes, and preserving public health and the environment. To support these manifold goals, the CAI supplements the Draft Framework Convention with a draft methodology entitled the Human Rights, Democracy and the Rule of Law Risk and Impact Assessment (HUDERIA). This methodology seeks to supply “clear, concrete and objective criteria” to identify sensitive contexts in which AI systems are likely to pose “significant levels of risk to the enjoyment of human rights, the functioning of democracy and the observance of the rule of law.”Footnote 145 Additionally, HUDERIA lays down procedural mechanisms to ensure risk and impact assessment, access to remedies, and regular monitoring to be put in place by AI developers, users, and intermediaries. This holistic approach to risk assessment clearly contrasts with the product safety mechanisms discussed in Part A, so the full vision of the CAI for AI regulation departs from the AI Act rather than the divergences we identified in the Draft Framework Convention.
Such divergences create a few issues for the AI Act’s potential Brussels Effect. If the CAI approach turns out to be more stringent than the EU’s, the EU instrument loses some of its appeal as a global standard.Footnote 146 In contexts that overlap the AI Act and CAI instruments, there is also the risk of inconsistencies between the regulatory approaches. These inconsistencies may follow from the differences between the product safety and principle-based approaches to regulationFootnote 147 or from differences in balancing market imperatives and human rights (and, in the case of the CAI approach, democratic values and the rule of law). Either way, the resolution of these inconsistencies will pose problems to jurisdictions that must apply AI Act-style requirements and CAI-style requirements at the same time.Footnote 148
How do we resolve these potential clashes between the instruments? Because institutional limits to EU competences constrain the AI Act,Footnote 149 it cannot be altered to match the full scope of the CAI approach. So, any convergence between these two instruments would come in one of two ways: either the AI Act’s scope is reduced, or the CAI provisions change and become more similar to the AI Act.
Under the former approach, the AI Act would be stripped of its fundamental rights requirements, which the CAI approach to human rights would cover. Such a reframing would cast the AI Act as a pure product safety instrument, removing the need for the compromises made to extend the framework for protecting fundamental rights. However, it would require the EU to cede its role in defining fundamental rights rules in AI regulation. While all twenty-seven EU Member States and the EU participate in the CAI, the negotiations for an international law instrument involve all forty-six CoE member States and some observer states such as Argentina, Australia, Canada, Costa Rica, Israel, Japan, Mexico, Peru, the United States, and Uruguay.Footnote 150 EU perspectives would heavily influence any rules on fundamental rights produced in this context, and they would also entail some compromise between EU values and interests and those of the non-EU parties involved in the negotiation.Footnote 151
Instead, the EU has decided to solve conflicts between the AI Act and the CAI approach by pushing the CoE towards the former. In November 2022, the EU Council authorized the Commission to start negotiations on behalf of the EUFootnote 152 to ensure consistency between both approaches.Footnote 153 The specific positions the Commission is expected to pursue are detailed in an addendum to the decision, which—at least in its draft version—states that the Union should push the CoE towards a risk-based approachFootnote 154 that is fully compatible with the AI ActFootnote 155 and recognizes an important role for technical standards and certification mechanisms.Footnote 156 In short, the Commission’s position in the negotiations should be that of shaping the CoE convention into an approach that includes the core elements of the AI Act.
This direct exercise of influence in the negotiations cannot be mistaken for a Brussels Effect, as this requires the EUFootnote 157 to act in a multilateral forum. Yet, this multilateral action is intricately connected to the EU’s unilateral influence in regulation. On the one hand, the potential replication of AI Act provisions into the CoE convention removes a potential competitor to the AI Act in the global sphere. On the other hand, the expectation of a Brussels Effect from the AI Act strengthens the EU negotiating position in the final rounds of negotiation for the convention.Footnote 158 So, the EU’s position in the CoE negotiations is coherent with its ambitions to shape the regulation of AI technologies globally.Footnote 159 The side-effects of regulating AI through a product safety approach might harm the protection of fundamental rights, democracy, and the rule of law in the EU and worldwide.
D. Conclusion
The above arguments have implications for the theoretical debates on the Brussels Effect and the regulatory debates on AI governance. Our contribution to the scholarship on the Brussels Effect is narrow. While we believe the Side Effect may appear in other areas—particularly in different branches of EU digital regulation—we make no direct attempt to establish its existence elsewhere. Still, these arguments show some of the difficulties in assessing the stringency criteria for the occurrence of the Brussels Effect.
Notably, Bradford herself has arguedFootnote 160 that the Brussels Effect provides an alternative to the “race to the bottom” models of regulatory competition. As seen in Part A, subheading II, the existence of a Brussels Side Effect in AI regulation would produce a situation in which the stringent regulatory standards of the AI Act lead to weaker standards for the protection of fundamental rights. Such a scenario suggests the need to distinguish between the global diffusion of specific regulatory instruments and the diffusion of regulatory goals and framings, which might not accompany, or even be undermined by, the former under the Brussels Effect.
Regarding the regulation of AI technologies, the side-effect mapped in Part B, subheading II, suggests that the AI Act may be a double-edged sword for the EU. On the one hand, it provides a template that will shape other regulatory efforts by the simple fact of being the first substantive regulation on AI, thus preserving the EU as a global rule-maker. On the other hand, this very efficiency may prevent the EU from developing the instruments it needs to address the shortcomings of the product safety framework for the regulation of fundamental rights. The European approach to AI may be undermined by the very instrument meant to establish it.
In December 2023, negotiating teams from the Parliament and the Council reached a political compromise regarding the AI Act’s text.Footnote 161 The final compromise text was closed in February 2, 2024, and it is expected to be formally approved by both legislative institutions before the end of summer 2024.Footnote 162 The CoE AI convention is expected to follow a similar timeframe, as the final compromise text is currently expected for mid-March 2024.Footnote 163 This timetable, and the institutional context detailed above, leave little hope that either the AI Act or the CoE AI Convention will undergo any substantial changes to address the issues raised above. It remains to be seen, therefore, whether success in spreading the AI Act will be anything more than a Pyrrhic victory for the European’s ambitions of spreading values through AI regulation.
Acknowledgements
The authors thank Giovanni Sartor, Mădălina Busuioc, Chris Marsden, Gregory Lewkowicz, Nicolas Petit, Thomas Streinz, Soizic Penicaud, Vagelis Papakonstantinou, Axel Beelen, and Mireille Hildebrandt for their comments on previous versions of this manuscript. They would also like to thank Deirdre Curtin, Nicolas Petit, and Thomas Streinz for their comments on related work.
Competing Interests
The authors declare none.
Funding Statement
Marco Almada’s work on this Article was partially funded by doctoral grants from Fundación Carolina and the EUI ASPIRE programme.
Open access
