030658 KU From "factum principis" to "experimentum legis": "regulatory sandboxes" in the EU (2024W)

The course is aimed at addressing the topic of “Regulatory Sandboxes”, which is a recent phenomenon which can be observed in many Countries worldwide. Lectures will analyse EU sandboxes, and specifically those that are provided by the AI ACT.

CONTENTS
The practice of experimentation nowadays is being utilized not only by designers and developers in industrial laboratories, but also by legislators to collect information and nurture innovation. In last years we have witnessed in EU legislation a major surge of the adoption of “regulatory sandboxes” in many crucial sectors. Indeed, not only the EU Commission has put forward an ambitious initiative in the field of cryptocurrencies (European Blockchain Regulatory Sandbox), to spread the implementation of Distributed Ledger Technologies, but also the "Open Governance Act", Reg. EU 2022/868 and The “Interoperable Europe Act”, Regulation (EU) 2024/903. Lastly, the “Artificial Intelligence Act” REg. EU 2024/1689, provides a definition of «regulatory sandboxes» (article 3) establishing many requirements for their institution (articles 57-63), even admitting “testing in real-world conditions”.

Such kind of legislative technique presents many profiles of interest, theoretical and practical, which will be addressed and discussed during the lectures.

(1) Political Philosophy: can lawmakers “play” with rules? Considering the political-philosophical background, it might be argued whether a legislator could be entitled to exploit entire communities, groups of people or individual citizens for the purpose of gathering any kind of knowledge, or if there could be drawn limits in terms of legitimacy or conditions for the exercise of public authority. The enactment of “regulatory sandboxes”, in this sense, overlaps on one side with the requirement of a minimum standard of rationality, which nowadays is intrinsic in Western legal culture, and, on the other, with the limits to “nudging” practices which recently have started being widely discussed by academics.

(2) Philosophy of law: which kind of concept of law does the “Sanbox” entail?
The phenomenon of “Sandboxes” is broadly qualified as “Soft Law”, but a much more rich analysis can be done considering the current philosophical approach called “Philosophy of Information”. On this regard, technological design requires many “experiments” to settle according to a given “design”.

(3) General Theory of Law: which kind of rule is a “sandbox”?
According to traditional General Theory of Law, the concept of “regulatory sandboxes” itself is obscure. Indeed, scholars have classified special, temporary, or exceptional norms, as opposed to ordinary ones, but none of them includes the power of the legislator to retain the power of monitoring the impact of enacted rules to confirm, and of modifying or eliminating - entirely or partially – those that originally were valid provisions. In this sense, “regulatory sandboxes” can be considered a sophisticated model of cybernetic control of social processes.

(4) European Law: how are “Sandboxes” regulated in the “AI ACT”?
The specific provisions of “regulatory sandboxes” included in the “AI ACT” deserve a closer examination aimed at evaluating how risks are assessed and governance mechanisms are established. Specifically, it is relevant to address the measures needed to put in place adequate warranties for Eu-chartered fundamental rights, and especially for privacy.

(5) Practical: How can we build a “Sandbox” according to the “AI ACT”? How can we participate in it?
Focusing on the AI ACT, there are many detailed provisions regulating the process of building, authorizing and participating in a “Sandbox”. How do they work?

METHODS
Mix of traditional lectures and discussions.
At the beginning of the course, students will be divided in groups.
Each group at the end of the course will be invited to create and showcase its own “Regulatory Sandbox”.