EU General Principles in the Digital Society
Digital technologies have undoubtedly changed the outline of the organization of modern society and indicated an emergence of the new era of its governance. Such manifestations of digitalization as social media, platform economy, big data, Artificial Intelligence (AI), fintech, blockchain and internet of things have become an integral and sometimes even unnoticeable part of our life. They have brought up, on the one hand, new solutions to the long-running problems (e.g., an increased possibility of dismantling arbitrariness in decision-making processes originally carried out by humans) and, on the other hand, new unresolved challenges that pose questions to the suitability of the current legal framework regulating the digital society that is characterized by a high level of flexibility and unpredictability of the results that is, however, underpinned by partially identifiable initial risks (Scherer, 2016). The peculiarities of high-tech solutions require refashioning existing modes of regulation that in its turn, has a drastic impact on the edifice of European Union (EU) law, including one of its cornerstones, namely the doctrine of general principles. The general principles of EU law have always been notable for their capacity of being swiftly responsive to the transformations occurring in the society and being better equipped for addressing the alterations inevitably affecting the constitutional foundations of the EU.
However, the multiple changes brought by the rise of the digital society may not only affect the application of the doctrine of general principles but also its very nature. Are the general principles flexible enough to adapt to this technological shift? Can one contend that the general principle of EU law is resilient? In our finalizing article, ‘Towards General Principles 2.0: The Application of General Principles of EU Law in the Digital Society’, inspired by many contributions to the book, we assess the effects of the technological disruption on the doctrine of general principles and study the resilience of the classical doctrine of general principles in the digital society. It is underlined that the doctrine of general principles faces important changes and that new types of general principles must be taken into consideration, indicating the emergence of the new version of general principles of the future, “General Principles of EU Law 2.0”. These changes also affect the architecture of the single market, with general principles needing to be harnessed not only to continue the establishment of a single market but also to shape a new space, the infosphere, within which that market can operate, paving a way for the introduction of the iRule of Law that would regulate that space (Lessig, 2006).
By demonstrating a clear resilience of the general principles in the digital society in light of the shift towards the rise of more regulated digital society (Minssen, 2019), we emphasize that general principles are able to play a role in European integration in the digital age, but it requires us to ensure that they become part of an architecture of “General Principles by Design” which will allow the society to remain in control of the technological developments and the new digital spaces which are being created. The concepts of “Privacy by Design,” “Equality by Design” or even the need to rely on the precautionary principle call for a theory of “General Principles by Design” or “General Principles of EU Law 2.0.” that illustrates the resilience of the doctrine of general principles in the digital society and highlights its great operational potential.
Xavier Groussot - Lund University
Anna Zemskova - Lund University
Eduardo Gill-Pedro - Lund University