From codifying procedure to proceduralising code? – The European Union’s Artificial Intelligence, Digital Services and Digital Markets Acts as instruments of cyberspace regulation and enforcement

This paper builds upon research conducted in the first WP of the EUDAIMONIA project. It analyses and compares the regulatory frameworks adopted or proposed by the European Union (EU) in the realm of digital services, digital markets and artificial intelligence technologies. It argues that those different frameworks are illustrative of an implicit common underlying approach towards digital regulation. Per that approach, the EU seeks to ensure digital technologies’ design in compliance with its fundamental values through regulatory procedures focused on the use of technology systems and the behaviour of digital technology players. That approach, grounded in and building upon the conceptual premises of cyberspace regulation is inherently procedural. However, the way in which it has been embedded in the EU’s Digital Services, Digital Markets and Artificial Intelligence Acts also highlights three fundamental limits of that procedural approach. The paper argues that in order to overcome those limits, a complementary regulatory posture in the form of proceduralising code would be welcome. It subsequently calls for two steps forward in order to further develop that complementary posture within the current EU legal framework.