Catalina Goanta, Regulatory Siblings: The Unfair Commercial Practices Directive Roots of the AI Act, SSRN
As far as technology governance is concerned, in the past two years, the European Commission has been issuing one regulatory proposal after another. One of the proposed instruments is the Artificial Intelligence Act (AI ACT), which is expected to shape the future of technology innovation on the internal market, while proposing stringent normative boundaries for the development of artificial intelligence on the continent.
A quick read of the AI Act reveals a highly complex and cumbersome piece of regulation, which might further complicate harms arising out of the deployment of AI products, rather than clarify the regulatory boundaries of its use. Particularly for the consumer protection reader, Article 5 echoes an earlier, principle-based regulatory instrument, namely the Unfair Commercial Practices Directive (UCPD). In an almost similar fashion, Article 5 of the AI Act sets forth a prohibition of artificial intelligence practices, just as Article 5 of the UCPD establishes a prohibition of unfair commercial practices.
To better understand the pitfalls of such a widely drafted, principled-based regulation such as the AI Act, this chapter proposes a comparative analysis of both Articles 5, to flesh out the similarities between the AI Act and the UCPD relating to regulatory techniques. In doing so, the chapter explores both texts and extracts the common characteristics. It further offers insights for the interpretation of these characteristics on the basis of UCPD case law from the Court of Justice of the European Union (CJEU). Lastly, the chapter critically addresses some problematic concepts embedded in Article 5 of the AI Act in the light of the legal uncertainty raised by the prior application of the general test in Article 5 of the UCPD, by proposing and analyzing the concept of regulatory siblings, namely similar legal rules conceptually linking different legislative instruments.
Keywords: UCPD, unfair practices, AI Act, consumer protection, technology regulation
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