Futureproofing EU Law - The Case of Algorithm Discrimination
123 Pages Posted: 2 Nov 2021
Date Written: July 30, 2021
The paper presents the European Charter of Fundamental Rights (the Charter) and the General Principles of European Union (EU) law as tools which can be used to futureproof the current EU non-discrimination framework against the main substantive challenges raised by algorithmic discrimination. The first chapter identifies the narrow personal and material scope of the current non-discrimination framework as being substantial limitations in the face of algorithmic discrimination, the effects of which are also discussed. The Charter and the General Principles are presented as potential solutions, given their goal to ensure the evolution of EU law in response to societal changes and technological development. The second chapter provides a closer look into these futureproofing tools and their dynamic, as well as the role of the Court in applying them and the potential issues involved with it doing so, including claims of judicial activism and competence creep. Having set out what needs futureproofing and why, as well as the tools available for the task, chapter three discusses ways in which the futureproofing process itself could unfold and argues that there are four approaches that the Court could take, each with its respective benefits and limitations. These four approaches are presented as being complementary rather than mutually exclusive, giving the Court the chance to use the most appropriate one in each specific case and therefore the possibility to futureproof EU non-discrimination law for the age of Artificial Intelligence.
Keywords: AI, algorithmic discrimination, non-discrimination, EU law, general principles
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