On November 14^th and 15^th, 2024, the University of Padova hosted the conference titled ‘Harmonised standards in EU Digital Regulation’, co-organized with Maastricht University and University of Tübingen. The objective of the conference was to discuss the legal, ethical and political questions raised by the involvement of technical standardisation in the EU regulation of digital technologies. The conference was an enriching opportunity for addressing this topical issue of European administrative law, and it abided to its promise to facilitate debate and exchange of ideas about what is indeed a complex and multifaceted scenario.

The conference kick-started with a welcome address by Annalisa Volpato (University of Padova) who recalled the historical role of harmonised standards in building the internal market and in supporting the EU industrial policy. She underlined that, following the European Commission’s ambitious package of legislative initiatives in EU digital policy, the use of harmonised standards shifted from the specific (and relatively uncontroversial) regulation of industrial products, to regulate vast, value-loaded and cutting-edge aspects of digital technologies. This may exacerbate existing issues concerning standardization and open up a plethora of legal questions as well as ethical concerns.

Annalisa Volpato then opened the floor to the first panel dedicated to the ethical issues raised by the reliance on technical standards for regulating digital technologies, especially artificial intelligence. Simone Casiraghi together with Niels van Dijk (Vrije Universiteit Brussel) shed light on the critical consequences of the convergence of two trends in artificial intelligence (AI) governance – namely, ‘ethification’ and standardisation – by analysing the development of IEEE 7000-2021 standard on the ethics of autonomous and intelligent systems, and the challenges that its possible endorsement through the AI Act raises. Alessio Tartaro (University of Sassari) complemented the debate by exploring the challenges posed by the inherent vagueness and contestability of the AI Act’s provisions. He highlighted how the conformity assessment processes, alongside the actors involved in them, will be crucial in navigating the complex normative questions that arise from the operationalization of the AI Act value-laden requirements.

The second panel chaired by Mariolina Eliantonio (Maastricht University) elaborated on the most topical legal issues related with the overarching theme of the conference. Björn Lundqvist (Stockholm University) examined IP-related concerns, related in particular to the existence of copyright over the text of standards, by clearly presenting the most recent case law on this (in particular C-588/21 P, Public.Resource.Org). Elvira Maria Rosaria Oliva (University of Bologna) explored whether, and the extent to which, the concept of AI trustworthiness can be operationalized through harmonized standards. She shed light on practical and legal issues stemming from the expectation to protect fundamental rights through standards, and noted the difficult task of the European Commission to intervene ex post by adopting implementing acts establishing common specifications when harmonised standards ‘insufficiently address fundamental rights concerns’ (Article 41.1 AIA). Lastly, Olia Kanevskaia (Utrecht University) explored how it could be possible to safeguard the public interest, enhancing access to standards-setting activities and stakeholder participation, through national standards bodies.

The second day was opened by Bernardo Cortese (University of Padova) who chaired a panel on accountability issues related to entrusting private bodies with rule-making power. Mariolina Eliantonio (Maastricht University) delved into the evolution of the role and the intensification of control of the European Commission over harmonised standards, concluding that the scope and extent of such control is not yet completely clear. Luca Visaggio (European Parliament) brought to the table the interesting perspective of the EU legislator on the topic at stake, dwelling on both the positive aspects and the legal issues arising from this form of co-regulation. Lastly, Irene Kamara (Tilburg University) shed light on the role of notified bodies as gatekeepers in the AI act, highlighting the importance of liability as a strong incentive to do the work properly and counterbalance the often-limited scrutiny over conformity assessment activities.

The conference was enriched by an online keynote speech by Hans Micklitz (European University Institute) who focused on identifying potential gaps in existing research to pave the way for future studies. He highlighted the importance of focusing on the other side of the ‘double privatisation’ in EU digital regulation: —aside from standardisation, self and third-party certification play an important role in ensuring AI Act compliance. Moreover, he urged the exploration of new avenues to access documents to navigate through the (still) foggy and untransparent technical standardisation processes and conformity assessment activities.

Finally, the last panel, chaired by Tommaso Fia (University of Tübingen), discussed the endorsement of harmonised standards in digital regulation, apart from the AI Act. While Federico Serini (University of Rome La Sapienza) focused on cybersecurity legislation and its interplay with standards, Farid Mahsouli (Radboud University) and Anamika Kundu (European University Institute) presented their tentative ‘investigation’ in the proposed European Heath Data Space. Finally, Pankhudi Khandelwal (European University Institute) delved into the role of standardisation for interoperability under the DMA (Regulation (EU) 2022/1925), putting forward an interesting comparison with the financial sector.

The conference provided a valuable opportunity to explore the evolving landscape of technical standardization within the European Union, while also prompting reflection on the legal, ethical, and political implications of the involvement of technical standardisation in the specific field of digital technologies. The issues raised by this evolution bear significance not only for the role of European Standardization Organizations in digital regulation, but more in general for EU administrative governance and for the principles of transparency, participation, accountability and the rule of law, constituting the constitutional and administrative foundations of EU decision-making. A publication of the conference’s collected contributions is being planned as this is a critical moment for the field of technical standardization in the EU, making scholarly attention on the subject all the more important.

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Posted by Francesca Fumagalli (University of Padova)