EU non-discrimination law in the era of artificial intelligence : mapping the challenges of algorithmic discrimination

While most studies on the topic of AI, algorithms and bias have been conducted from the point of view of ‘fairness’ in the field of information technologies and computer science, this chapter explores the question of algorithmic discrimination – a category that does not neatly overlap with algorithmic bias – from the specific perspective of non-discrimination law. In particular and by contrast to the majority of current research on the question of algorithms and discrimination, which focuses on the United States context, this chapter takes EU non-discrimination law as its object of enquiry. We pose the question of the resilience of the general principle of non-discrimination, that is, the capacity for EU equality law to respond effectively to the specific challenges posed by algorithmic discrimination. Because EU law represents an overarching framework and sets minimum safeguards for the protection against discrimination at national level in EU Member States, it is important to test out the protection against the risks posed by the pervasive and increasing use of AI techniques in everyday life applications which this framework allows for. This chapter therefore maps the challenges arising from artificial intelligence for equality and non-discrimination, which are both a general principle and a fundamental right in EU law. First, we identify the specific risks of discrimination that AI-based decision-making, and in particular machine-learning algorithms, pose. Second, we review how EU non-discrimination law can capture algorithmic discrimination in terms of its substantive scope. Third, we conduct this review from a conceptual perspective, mapping the friction points that emerge from the perspective of the EU concepts of direct and indirect discrimination, as developed by the Court of Justice of the European Union (CJEU). In the final step, we identify the core challenges algorithmic discrimination poses at the enforcement level and propose potential ways forward

Hou toezicht op de emancipatie!

For numerous public interests there are supervisory bodies, such as the Netherlands Authority for the Financial Markets (AFM) and the Netherlands Authority for Consumers and Markets (ACM). Drawing on the multidisciplinary Transformative Equality Approach that was developed in the UU Gender and Diversity Hub, we argue that it is high time to establish a Netherlands Authority for Emancipation (NEMA). Rather than putting the onus for emancipation and equality on those who suffer from inequality, the government should take ownership of inequality problems by establishing a supervisory body for effective compliance and enforcement of equal treatment legislation

A comparative analysis of gender equality law in Europe 2022

This report provides a general overview of the ways in which EU gender equality law has been implemented in the domestic laws of the 27 Member States of the European Union, as well as Iceland, Liechtenstein and Norway (the EEA countries), the United Kingdom and five candidate countries (Albania, Montenegro, North Macedonia, Serbia and Turkey). The analysis is based on the country reports written by the gender equality law experts of the European equality law network (EELN). At the same time, the report explains the most important elements of the EU gender equality acquis. The term ‘EU gender equality acquis’ refers to all the relevant EU Treaty and EU Charter of Fundamental Rights provisions, legislation and case law of the CJEU in relation to gender equality

The OMC and its Patch in the European Regulatory and Constitutional Landscape

Multi-level forms of governance, as representing a less top-down and more bottom-up approach, have been promoted with a view to enhancing not only the legitimacy of EU action but increasingly also its effectiveness. At the same time, however, their use raises effectiveness and legitimacy concerns of its own. This also goes for the open method of coordination, as one of the major manifestations of the Union’s multi-level governance development. Much research on the OMC focuses on its use in particular policy areas and the effectiveness concerns that may arise in such areas. In this contribution the focus will be more generally on the legitimacy of the OMC as a regulatory device, in terms of its legal foundations. It asks how the use of the OMC fits in the European regulatory and legalconstitutional landscapes, in particular to what extent its current patch in these landscapes, in the light of the quest for more legitimacy of the EU, can be said to lead to a need for a) more conceptual clarity and b) a better constitutional embedment in the Treaties? After analysing the development of the OMC in the broader regulatory context of the EU, the relation between the OMC and the classic Community – now Union – method and the European legal framework within which the OMC is being resorted to, the focus is on whether this legal framework meets the requirements imposed by the principle of legitimacy; in particular, under what legal conditions would one be able to say that the OMC makes indeed a contribution to the legitimacy of the European Union? It is argued that some constitutional changes need consideration in this regard.This paper has been delivered within the context of the research project: Transnational Private Regulatory Regimes: Constitutional foundations and governance design Co-financed by HiiL (Hague Institute for the Internationalisation of Law

The Multiplicity of Regulatory Responses to Remedy the Gender Imbalance on Company Boards

In this article the variation in regulatory and enforcement regimes, strategies and styles that have developed in European countries with a view to tackling the problem of the underrepresentation of women on company boards and to bring about actual change will be charted. By providing a comparative analysis it seeks to offer insights into the following issues: how do public and private regulators and regulation interact with each other to solve this problem; what self- and co-regulation/enforcement regimes can one identify and what hard law approaches; what are relevant factors or principles determining the chosen strategy and types of instruments; are hard quota law approaches more effective than soft(er) public or private approaches; more generally, what are important conditions or elements for ensuring that the chosen instruments will be effective in the light of the goal to be achieved? The article concludes with some lessons that can be drawn from the analysis when it comes to ensuring the effectiveness of regulatory and enforcement approaches in this area, also for policymakers, and as to what might be a possible optimal mix

The OMC and its Patch in the European Regulatory and Constitutional Landscape

Multi-level forms of governance, as representing a less top-down and more bottom-up approach, have been promoted with a view to enhancing not only the legitimacy of EU action but increasingly also its effectiveness. At the same time, however, their use raises effectiveness and legitimacy concerns of its own. This also goes for the open method of coordination, as one of the major manifestations of the Union’s multi-level governance development. Much research on the OMC focuses on its use in particular policy areas and the effectiveness concerns that may arise in such areas. In this contribution the focus will be more generally on the legitimacy of the OMC as a regulatory device, in terms of its legal foundations. It asks how the use of the OMC fits in the European regulatory and legalconstitutional landscapes, in particular to what extent its current patch in these landscapes, in the light of the quest for more legitimacy of the EU, can be said to lead to a need for a) more conceptual clarity and b) a better constitutional embedment in the Treaties? After analysing the development of the OMC in the broader regulatory context of the EU, the relation between the OMC and the classic Community – now Union – method and the European legal framework within which the OMC is being resorted to, the focus is on whether this legal framework meets the requirements imposed by the principle of legitimacy; in particular, under what legal conditions would one be able to say that the OMC makes indeed a contribution to the legitimacy of the European Union? It is argued that some constitutional changes need consideration in this regard.legitimacy

Soft law and its implications for institutional balance in the EC

The EU avails itself increasingly of soft law instruments, in certain situations to the detriment of legislation. The general assumption underlying this more diversified use of legal instruments is that this contributes to the legitimacy, effectiveness and transparency of Community action and, as such, to good governance. This assumption raises doubts, however, from various perspectives. This contribution focuses on one such perspective, i.e. that of the horizontal division of powers or institutional balance between the EU institutions; to what extent does the use of soft law by one institution entail an unacceptable bypassing of the competences of the other institutions in the decision-making process? In dealing with this question, the author among other things looks into the concept and classification of EC soft law, the competence to adopt soft law and the limits that can be placed upon this competence, the meaning of ‘legitimacy’ and of ‘institutional balance’, the existing guarantees for protecting the institutional balance in this regard and changes that may be required