September 30
2020

General Principles of EU Law and the EU Digital Order

Ulf Bernitz, Xavier Groussot, Jaan Paju and Sybe de Vries (EDS.)

review by

Alberto Miglio

In the extensive academic literature on the regulation of digital technology, General Principles of EU Law and the EU Digital Order, a collection of essays edited by Ulf Bernitz, Xavier Groussot, Jaan Paju and Sybe de Vries, stands out for its focus on general principles. One way of addressing the interplay between general principles and the digital society is to explore the contribution of the former in regulating the latter. Many contributions in the book do exactly that in respect of a variety of specific subjects, from blockchain to copyright to algorithmic discrimination. Yet, as may be expected from a collection edited by EU law scholars rather than technology law experts and forming part of a series dedicated to the general principles of EU law, the book has an additional and more ambitious goal. It aims to describe and assess the impact of technology on general principles.

The main point of the whole book is that general principles are irreplaceable tools for the regulation of digital society, yet need to adapt to an environment that is different from the analogue world.  In their concluding chapter, Xavier Groussot, Anna Zemskova and Eduardo Gill-Pedro identify four challenges posed by technological disruption. First, the rate of technological change forces increasing reliance on open-textured principles rather than specific rules. Second, digital technology puts a strain on the traditional model of ex post judicial enforcement of general principles, calling for governance mechanisms embedding them in the design of digital technologies. Third, they argue that the digital society requires new principles and a reconceptualisation of many existing ones. This is a recurring theme in several chapters. For instance, Liane Colonna focuses on transparency as a response to the opaqueness of algorithms, Vassilis Hatzopoulos suggests a reinterpretation of the principle of effectiveness and Lucky Belder argues that precaution and sustainability have an important role to play in the governance of digital technology. The fourth challenge is the horizontal effect of general principles in a setting characterised by unequal control over data and unbalanced power relations between private parties.

Despite some overlapping between chapters – for instance, there are three on copyright – the book displays a remarkable thematic consistency, with the internal market as the main focus. Some of the general principles discussed are obvious choices, such as proportionality – the subject of four different chapters – and non-discrimination. Other principles, such as sincere cooperation, whose far-reaching implications are presented by John Temple Lang, are less frequently addressed in relation to digital technology. This adds to the interest of the book, which may appeal to experts in law and technology and in internal market law, but also to readers interested in fundamental rights protection and in the evolution of EU law more generally. Additional appeal comes from developments the editors could not have foreseen: in a time when prolonged social distancing dramatically accelerates societal changes brought about by digital technology, being able to rely on well-established, familiar principles is a reassuring thought.

 

Alberto Miglio is a postdoctoral researcher in EU law at the University of Turin

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