The European Risk-Based Approaches: Connecting Constitutional Dots in the Digital Age

Abstract

In the last years, risk has become a proxy and a parameter characterizing the European regulation of digital technologies. Nonetheless, the European risk-based regulation in the digital age is multi-faceted in the approaches it takes. This work takes into consideration three examples: the General Data Protection Regulation; the proposal for the Digital Services Act; and the proposal for the Artificial Intelligence Act. These three instruments move across a spectrum, moving from a bottom-up approach (the GDPR) to a top-down architecture (the AI Act), and going through an intermediate stage (the DSA). We argue, however, that, despite the different methods, the three instruments share a common objective and project, i.e., they all seek to guarantee an optimal balance between innovation and the protection rights, in line with the developing features of European (digital) constitutionalism. Through this lens, it is thus possible to grasp the fil rouge behind the GDPR, the DSA and the AI Act as they express a common constitutional aspiration and direction.
This paper is a pre-edited work of the article published in issue 59(2) of the Common Market Law Review.

Keywords: risk-based approach, EU law, constitutional law, digital constitutionalism, digital technologies