Regulation

March 2024 has been the apex of a sort of race as to which international organisation would be the first to adopt an instrument trying to regulate the development, production, and use of artificial intelligence. The paper highlights the advantages and disadvantages of a Council of Europe treaty, such as the Draft Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law, as opposed to an EU regulation, such as the so-called “Artificial Intelligence Act”. The content of Draft Framework Convention is presented only briefly, before explaining why there is a case for a Council of Europe Treaty on Artificial Intelligence. The instrument of a Council of Europe Convention is then compared to the instrument of an EU Regulation, especially in terms of the limits resulting from the respective competences of the Council of Europe and the European Union, as well as the consequences of the need for ratification of the Council of Europe treaty as opposed to the direct applicability of the EU regulation.

The paper deals with the increased intervention of States in the economy in a historical phase of de-globalisation and changing geopolitical balances. Tensions are arising in the relations between the European Union and the United States as a consequence of the approval of the Inflation Reduction Act in 2022, that encourages productive investments located in the United States, thereby altering competition. The paper dwells on the Italian “golden power” regulation that introduces public control that significantly affects freedom of enterprise. The paper ends with the hope that the increased intervention of the State will not frustrate the achievements of the regulatory State, established since the 1980s in Western countries.

The paper suggests the rise of a modern principle of residuality, which exceeds the balance between regulation and competition. This principle calls for the justification of regulation in terms of necessity. Problem drivers should be also taken into consideration, as well as the regulatory content. The problem drivers appear to be enriched compared to the traditional ones, whilst also being disentangled from problems that have already materialized so as to embrace a prospective and anticipatory approach.