EU Commission postponed AI treaty negotiations with further delays in sight

The Council of Europe is currently working on a Convention on Artificial Intelligence, human rights, democracy and the rule of law. [MDart10/Shutterstock]

*This story was updated with comments from the European Commission.

The European Commission has managed to postpone discussions on the Council of Europe’s treaty on Artificial Intelligence, with a view to obtaining a mandate to negotiate on behalf of the EU. Further delays might still follow as the bloc tries to get its act together.

The Council of Europe is an international human rights watchdog with 46 member countries. It set up a Committee on Artificial Intelligence to develop an international treaty on AI focusing on human rights, the rule of law, and democracy.

Besides the CoE members, the committee includes stakeholders from civil society, the private sector, and countries with observer status, namely the United States, Canada, Mexico, Japan, and Israel.

A plenary meeting in June provided the AI committee with a mandate to negotiate the treaty, and a ‘zero draft’ was shared for written comments. Based on this draft, the Commission sent a letter to EU countries in August telling them to refrain from engaging further in the negotiations.

The Commission invoked the principle of sincere cooperation, requesting to negotiate the treaty on behalf of the bloc since it has already tabled its own legislative proposal – the upcoming AI Act – a regulation that follows a risk-based approach, with obligations proportional to the potential harm.

The Commission has never hidden its ambition to make the AI Act the international standard for this emerging technology, and the convention is providing precisely the vehicle to do that. However, until August, the two files were intended to be separated.

“The discussions have been hijacked by EU internal dynamics, affecting non-EU countries and undermining the independence of the Council of Europe’s mandate on human rights,” a source familiar with the matter told EURACTIV on condition of anonymity.

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The rearrangement caught the EU member states flat-footed, not only because most people in Brussels and the other European capitals were off for the summer holidays.

So far, the negotiations on the two files at the national level were followed by different government branches – the economy ministry for the AI Act and the justice ministry for the Council of Europe’s treaty.

Those in the latter group, focused on fundamental rights, have now lost control over the process since the mandate for the Commission is being negotiated by their economy colleagues who follow the AI regulation in the EU Council’s Telecom Working Party.

The most critical observers note that if the treaty is no longer meant to be complementary to the AI Act but subordinated to it, the AI regulation will need to reinforce its fundamental rights safeguards.

“We believe that the EU AI Act and the framework Convention will add value to each other. There is no doubt a constructive and pragmatic approach to negotiate the two instruments in parallel and in close coordination will be found, while respecting the EU institutional order,” a Commission spokesperson told EURACTIV.

If that is not the case, the concern is that it will be impossible to go further with sectorial legislation since the AI rulebook is meant as a harmonisation tool.

In the second plenary meeting of the committee from 21 to 23 September, the Commission representative informed the delegates that it would negotiate the file for the whole EU and asked for more time to have the member states adopt its mandate. The next plenary session, scheduled for November, was consequently postponed to January.

“There is a significant overlap of the scope of the zero draft and the proposed EU rules since both aim to regulate the design, development and use of AI systems in a horizontal manner, and to protect against risks to fundamental rights and freedoms,” said the EU statement from September, obtained by EURACTIV.

The Czech Presidency of the EU Council now has the complex task of drafting the negotiating mandate for the Commission. However, the question remains of how far the EU executive can go in the negotiations since the EU’s AI Act is still a moving target.

“It’s extremely complicated. What is the European Union’s position? What should be included in the mandate?” an EU diplomat told EURACTIV. “That can have a negative effect on how the Union’s interests will be represented, but that’s the process.”

The EU’s regulation is unlikely to complete its legislative process in under a year, whereas the current mandate of the Council of Europe’s committee expires on November 2023.

Therefore, the overall impression is that the Commission is buying time, as it has also blocked the discussion on aspects not directly related to the AI Act, such as procedural aspects.

During the plenary discussion, the Commission delegate asked for an extension of the committee’s mandate in case the EU did not finalise the AI Act in time. The committee’s chair and secretariat coldly received the request as it would impact the CoE’s already limited budget.

The Commission spokesperson denied that the EU executive was trying to delay the process, pointing to its early engagement in the negotiation and the fact that it is not in a position to request an extension of the committee’s mandate.

“No regulation is regulation already. Until binding and effective legal instruments are adopted and applied, unacceptable patterns and practices will entrench themselves further,” said Gregor Strojin, vice-chair of the Committee on AI.

Meanwhile, the EU and its member states have gone into silent mode, leaving a vacuum that was quickly filled by non-EU countries, which have become more vocal.

In the last plenary, the United States, with the support of Canada, Japan, the UK, and Israel, made a case for backtracking on the treaty’s scope, aiming to limit it to public sector bodies.

[Edited by Zoran Radosavljevic]

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