Experimental lawmaking in the EU: Regulatory Sandboxes

Abstract

Regulatory sandboxes, experimental clauses, and experimental regulations are relatively unknown terms in EU law. The term ‘experimental lawmaking’ is elusive and it is unclear how experimental laws and regulations fit within existing EU law frameworks. Regulatory sandboxes are a leading and recent example of experimental lawmaking which started at national level and is now slowly making its way into the EU law toolbox.

Regulatory sandboxes are experimental legal regimes which waive, modify national regulatory requirements (or implementation) or provide bespoke guidance on a temporary basis and for a limited number of actors in order to support businesses in their innovation endeavors. A regulatory sandbox offers safe testbeds for innovative products and services without putting the whole system at risk. Sandboxing aims to promote thus the advancement of technology, new policy solutions through the promotion of collaborative regulation, and novel compliance initiatives between innovators and regulators. After a brief experience of national implementation in the financial, energy, healthcare, telecommunications, and data protection sectors, the EU has embraced the potential of regulatory sandboxes in its AI Regulation Proposal. Nevertheless, there are still many unknowns in the world of EU experimental lawmaking. The definition, modus operandi, regulatory implications as well as the design and methodology of experimental regulations and regulatory sandboxes will determine whether this experimental approach to law and regulation will indeed be successful and help advance responsible innovation in the EU. In this contribution, I draw upon recent scholarship and national experiences with regulatory sandboxes to shed light on the legal nature, innovative potential, and methodology of this instrument.

Keywords: Regulatory sandboxes; AI; experimental law; experimentalism; experimental governance; EU Law; anticipatory governance; experimental regulations

JEL Classification: K10; K20