European Commission proposal on the regulation of artificial intelligence

On 21 April 2021, the European Commission presented its proposal on the regulation of artificial intelligence (AI), an important element of the regulatory package announced by European Commission’s Executive Vice-President, Margrethe Vestager, which builds on the 2020 White Paper process in which the ETUC was also involved.

The risk-based methodology adopted is questionable

The proposed regulation adopts a ‘high-risk approach’. As such, it proposes a distinction between uses of AI that create unacceptable risk (which are prohibited); uses that create high risk (which are allowed where specific requirements are met); and uses with minimal or low risk (which are allowed, mostly unconditionally).

This approach is questionable as risks may vary depending on the use of a given application. The AI regulation lists high-risk applications that are subject to certain mandatory requirements and calls for conformity assessment procedures as a part of those obligations. The ETUC emphasises that these assessments will not provide the neutrality required for a sound evaluation of the potential implications of AI systems. At the minimum, the conformity assessment of AI systems used for ‘employment, workers’ management and access to self-employment’ must be carried out by an authorised third party. A combination of ex-ante compliance and ex-post enforcement mechanisms is recommendable. Additionally, regulatory sandboxes should not be allowed for AI systems to be deployed at the workplace.

The worker dimension is not adequately addressed and the role of Trade Unions needs to be strengthened

The proposed regulation fails to address the specificity of AI uses in employment, including platform work. The EU Commission should ensure that trade unions and workers’ representatives participate actively in the building of AI at work, which is essential to achieve a robust AI framework that guarantees the protection of workers’ rights, quality jobs, and investment in worker’s AI literacy.

The AI regulation only considers a limited number of AI applications such as recruitment, task allocation and evaluation of workers. The ETUC believes that any AI system implemented in the workplace and the data selected to contribute to the system should be considered high risk and be subject to the scrutiny of competent authorities and trade unions through the established legislation. When AI systems are to be integrated in any degree at the workplace, the existing legal framework on the right of workers to information, consultation and participation shall be part of the mandatory compliance obligations.

AI should be governed by a democratic process and standards should reflect European values and specificities

The Commission gives importance to standardisation insofar as technical standards will be used to demonstrate compliance with the essential requirements set out and required in the Regulation. However, it is widely acknowledged that most national and European standardisation organisations are characterised by an important democratic deficit. The ETUC advocates for the adoption of standards at European level and further insists on the autonomy of social partners and on the respect of collective agreements and social dialogue that could potentially be challenged by standards.

Emerging technologies embed uncertain and unknown risks, that is why the precautionary and preventive approach needs to be part the regulatory framework. Adhering to the legal Precautionary Principle set up by the TFEU ensures that Europe secures and reinforces AI via its fundamental rules and values.

The governance of AI should be a democratic process. To ensure a democratic governance system, that the rights of workers are protected when AI systems are implemented at the workplace, trade unions should be part of the governance of the board. Other forms of consultations, such as expert groups, will result in the deterioration of the existing workers’ information and consultation rights. Moreover, the AI board proposed by the EC regulation does not provide for the independency needed for the monitoring of AI systems under the compass of the European Charter of Fundamental Rights.

ETUC demands

Based on its assessment, the ETUC sets forth the following demands for the AI regulation:

1. The AI regulation should address the need for inclusive and democratic governance and clear rules securing greater protection of workers.
2. Classify AI applications impacting workers’ rights and working conditions as high-risk and subject to appropriate regulation.
3. Guarantee AI systems in which humans remain in control, which is compliant with labour rights and a sound use of personal data. Trade unions and workers’ representatives must be key actors in developing and implementing AI systems.
4. Strengthen the application of GDPR to the workplace reality including the active involvement of social partners to strengthen industrial democracy.
5. Social dialogue structures, collective bargaining, information, consultation and participation of trade unions and workers’ representatives are key to providing the necessary support for workers to better build and be part of the uptake and monitoring of AI used at the workplace.
6. Guarantee the application of the precautionary principle should be a core action to tackling uncertain AI risks.

The ETUC assessment of the Commission’s proposal is based on the comprehensive position on European strategies on AI adopted by the ETUC Executive Committee on 2 July 2020.

For more information on the topic, please refer to the recent ETUI publication The AI Regulation: entering an AI regulatory winter?, the ETUC’s press release and the Commission’s proposal.