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Brussels, 18 August 2022

Recommendation for a EU COUNCIL DECISION authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law

Responsible service: Directorate-General for Communications Networks, Content and Technology

EXPLANATORY MEMORANDUM

CONTEXT OF THE PROPOSAL

Artificial intelligence (AI) offers great opportunities for society, the environment and the economy. At the same time, depending on the circumstances regarding its specific application and use, certain AI may cause material or immaterial harm and may generate risks to public interests and individuals’ fundamental rights and freedoms. A coherent legal framework for AI, protecting such public interests and fundamental rights, while fostering trust and innovation, is therefore crucial to addressing those challenges and making use of AI’s potential.

In April 2021, the European Commission proposed a comprehensive regulation on AI that would harmonise the rules for AI systems in all 27 EU Member States1. The European Parliament and the Council are currently negotiating the proposal in accordance with the ordinary legislative procedure. Various international organisations, including the Council of Europe, have also stepped up their efforts in this field, recognising the cross-border nature of AI and the need for international cooperation to address the common challenges.

Towards a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law

On 11 September 2019, the Council of Europe Committee of Ministers decided to set up an Ad hoc Committee on Artificial Intelligence (CAHAI)2. Its task was to examine the feasibility and potential elements of a legal framework on the development, design and application of AI, while taking into account the Council of Europe’s standards on human rights, democracy and the rule of law as well as relevant existing international legal instruments3.

CAHAI’s work was based on a feasibility study4 and a multi-stakeholder consultation carried out in the spring of 20215. On 3 December 2021, CAHAI completed its task, producing an outcome document that identified the possible elements of such a legal framework.6 According to the document, a legal instrument containing fundamental principles of protection of human dignity and the respect for human rights, democracy, and the rule of law is necessary for the development, design and application of AI systems.

The instrument should provide for the establishment of a methodology for risk classification of AI systems, featuring the categories ‘low risk’, ‘high risk’ and ‘unacceptable risk’. AI applications presenting ‘unacceptable’ risks should be banned7. In order to avoid unjustified bias, a provision on respect for equal treatment and non-discrimination should be included. Legal safeguards should guarantee at least the right to an effective remedy before a national authority, the right to be informed about the application of an AI system in a decision-making process, the right to choose interaction with a human, and the right to know that one is interacting with an AI system. However, specific issues like the manipulation of content (‘deep fakes’) should be dealt with in other sectoral instruments. A requirement to set up compliance mechanisms and national supervisory authorities should be considered. A non-binding impact assessment model could complement the legal instrument.

A successor to CAHAI – the Committee on Artificial Intelligence (CAI) – was set up for the period 2022-2024. According to its terms of reference8, the CAI is instructed to set up an international negotiation process to develop a legal framework on the development, design and application of AI. The framework should be based on Council of Europe standards of human rights, democracy and rule of law, and should be conducive to innovation. The framework is to be drafted by 15 November 2023 and finalised by the time the CAI is wound up in 2024. In fulfilment of its terms of reference, the CAI should coordinate its work with other intergovernmental committees and Council of Europe entities, base its work on strong evidence and an inclusive consultation process, including with international and supranational partners, and take account of the CAHAI outcome document.

On 4-6 April 2022, the CAI held its inaugural meeting where a chair, vice-Chair and bureau were elected. On 30 June 2022, the Council of Europe Committee of Ministers instructed the CAI ‘to proceed speedily with the elaboration of a legally binding instrument of a transversal nature (‘convention’/ ‘framework convention’) on artificial intelligence based on the Council of Europe’s standards on human rights, democracy and the rule of law, in line with its terms of reference, focused on general common principles, conducive to innovation, and open to participation by non-member States, while taking into account other relevant existing international legal frameworks or those under development’9.

Subsequently, the Chair of the CAI circulated a ‘zero draft’ of the future (framework) convention which lays down fundamental principles and rules aimed at ensuring that the design, development and application of AI systems are consistent with respect for human rights, the functioning of democracy and the observance of the rule of law. The future (framework) convention will have to be implemented in the respective jurisdictions of the Parties. The scope covers both public and private providers and users of AI systems, but excludes AI systems relating to national defence. The zero draft proposes to include the following provisions:

  • purpose and scope of the (framework) convention;
  • definitions for an AI system, lifecycle, provider, user and ‘AI subject’;
  • certain fundamental principles, including procedural safeguards and rights for AI subjects that would apply to all AI systems, irrespective of their level of risk;
  • additional measures for the public sector as well as AI systems posing ‘unacceptable’ and ‘significant’ levels of risk identified on the basis of a risk and impact assessment methodology (to be set out later in an annex to the convention);
  • follow-up and cooperation mechanism between the parties;
  • final provisions, including a possibility for EU Member States to apply EU law in their mutual relations for matters covered by the convention and a possibility for the Union to accede to the convention.

The zero draft will be discussed at CAI plenary sessions in Strasbourg planned for 21-23 September and 23-25 November 2022. Four meetings are also scheduled in 2023 and one meeting in 2024.

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Main text:

COM(2022)414_main_1_EN

 

Annex:

COM(2022)414_annex1_1_EN

 

Source – EU Commission: Recommendation for a COUNCIL DECISION authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law

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