By Emilio De Capitani
1.Setting the scene of EU legal framework on access to documents and to confidential information before the Lisbon Treaty
To better understand why the Commission “INFOSEC” draft legislative proposal (2022/0084(COD) on information security shall be substantially amended, let’s recall what was before the Lisbon Treaty and of the Charter, the EU legal framework on access to documents, and notably of EU classified information. With the entry into force of the Amsterdam Treaty on May 1999 the EP and the Council have been under the obligation (art.255 TCE) of adopting in two years time new EU rules framing the individual right of access to documents by establishing at the same time “the general principles and limits of public interests” which may limit such right of access.(emphasis added).
Notwithstanding a rather prudent Commission’s legislative proposal the EP strongly advocated a stronger legal framework for access to documents, for legislative transparency and even for the treatment at EU level of information which, because of their content, should be treated confidentially (so called ,“sensitive” or “classified information”).
Needless to say “Sensitive” or “classified information” at Member States level, are deemed to protect “essential interests” of the State and, by law, are subject to a special parliamentary and judicial oversight regime.[1] As a consequence, at EU level, even after Lisbon, national classified information are considered an essential aspect of national security which “.. remains the sole responsibility of each Member State” (art. 4.2 TEU) and “..no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;”(art 346.1(a)TFEU.
However, if national classified information is shared at EU level as it is the case for EU internal or external security policies it shall be treated as for any other EU policy by complying with EU rules. Point is on what legal basis these rules should be founded. This issue came to the fore already in 2000 when the newly appointed Council Secretary General Xavier SOLANA negotiated with NATO a first interim agreement on the exchange of classified information. The agreement which mirrored at EU level the NATO Classification standards (“Confidential”, “Secret” and “Top Secret”) was founded on the Council internal organizational power but this “administrative” approach was immediately challenged before the Court of Justice by the a Member State (NL) [2]and by the European Parliament itself [3] which considered that the correct legal basis should had been the new legislation on access to documents foreseen by art 255 of TEC which was at the time under negotiation. The Council, at last, acknowledged that art.255 TEC on access to documents was right legal basis and a specific article (art.9[4]) was inserted in in Regulation 1049/01 implementing art.255 TEC and the EP and NL withdrew their applications before the CJEU[5].
Point is that Art.9 of Regulation 1049/01 still covers only the possible access by EU citizens and such access may be vetoed by the “originator” of the classified information. Unlike national legislation on classified information art.9 didn’t solved, unfortunately, for the lack of time, the issue of the democratic and judicial control by the European Parliament and by the Court of Justice to the EUCI. Art.9(7) of Regulation 1049/01 makes only a generic reference to the fact that “The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.” A transitional and partial solution has then been founded by negotiating Interinstitutional Agreements between the Council and the EP in 2002 [6]and in 2014 [7]and between the European Commission[8] in 2010.
Point is that interinstitutional agreements even if they may be binding (art.295 TFEU) they can only “facilitate” the implementation of EU law which, as described above, in the case of democratic and judicial control of classified information still does not exists. Not surprisingly, both the Council and the Commission Interinstitutional agreements consider that the “originator” principle should also be binding for the other EU institutions such as the European Parliament and the Court of Justice.
This situation is clearly unacceptable in an EU deemed to be democratic and bound by the rule of law as it create zones where not only the EU Citizens but also their Representatives may have no access because of “originator’s” veto. As result, in these situations the EU is no more governed by the rule of law but only by the “goodwill” of the former.
To make things even worse the Council established practice is to negotiate with third Countries and international organizations agreements [9]covering the exchange of confidential information by declaring that the other EU Institutions (such as the EP and the Court of Justice) should be considered “third parties” subject then to the “originator” principle.
Such situation has become kafkianesque with the entry into force of the Lisbon treaty which recognize now at primary law level the EP right to be “fully and timely” informed also on classified information exchanged during the negotiation of an international agreement[10]. Inexplicabily , fourtheen years since the entry into force of the Traty the European Parliament has not yet challenged before the Court of Justice these clearly unlawful agreements.
That Institutional problem kept apart, fact remains that until the presentation of the draft INFOSEC proposal none challenged the idea that in the EU the correct legal basis supporting the treatment also of classified information should be the same of access to documents which after the entry into force of the Lisbon treaty is now art.15.3 of the TFEU[11].
2 Why the Commission choice of art 298 TFEU as the legal basis for the INFOSEC proposal is highly questionable [12]
After the entry into force of the Lisbon Treaty and of the Charter the relation between the fundamental right of access to documents and the corresponding obligation of the EU administration of granting administrative transparency and disclose or not its information/documents has now been strengthened also because of art.52 of the EU Charter.
In an EU bound by the rule of law and by democratic principles, openness and the fundamental right of access should be the general rule and “limits” to such rights should be an exception framed only “by law”. As described above the correct legal basis for such “law” is art.15 of the TFEU which, as the former art.255 TEC, states that “General principles and limits on grounds of public or private interest..” may limit the right of access and the obligation of disclosing EU internal information / documents. Also from a systemic point of view “limits” to disclosure and to access are now covered by the same Treaty article which frames (in much stronger words than art 255 before Lisbon) the principles of “good governance”(par 1), of legislative transparency (par 2) and of administrative transparency (par 3).
Such general “Transparency” rule is worded as following: “1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.(..) Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.”
Bizarrely, the European Commission has chosen for the INFOSEC regulation art.298 TFEU on an open, independent and efficient EU administration by simply ignoring art.15 TFEU and by making an ambiguous reference to the fact that INFOSEC should be implemented “without prejudice” of the pre-Lisbon Regulation 1049/01 dealing with access to documents and administrative transparency. How a “prejudice” may not exist when both Regulations are overlapping and INFOSEC Regulation is upgrading the Council Internal Security rules at legislative level is a challenging question.
It is indeed self evident that both the INFOSEC Regulation and Regulation 1049/01 deal with the authorized/unauthorised “disclosure” of EU internal information/documents.
Such overlapping of the two Regulations is even more striking for the treatment EU Classified information (EUCI) as these information are covered both by art. 9 of Regulation 1049/01 and now by articles 18 to 58 and annexes II to VI of the INFOSEC Regulation.
As described above, Art 255 TCE has since Lisbon been replaced and strengthened by art 15 TFEU so that the Commission proposal of replacing it with art.298 TFEU looks like a “detournement de procedure” which may be challenged before the Court for almost the same reasons already raised in 2000 by the EP and by NL. It would then been sensible to relaunch the negotiations on the revision of Regulation 1049 in the new post-Lisbon perspective but the Commission has decided this year to withdraw the relevant legislative procedure. Submitting a legislative proposal such INFOSEC promoting overall confidentiality and withdrawing at the same time a legislative proposal promoting transparency seems a rather Commission’s strong message to the public.
3 Does the INFOSEC proposal grant a true security for EU internal information?
Point is that European administrative transparency is now a fundamental right of the individual enshrined in the Charter (Article 42).The protection of administrative data is one of the aspects of the “duty” of good administration enshrined in Article 41 of the Charter which stipulates that every person has the right of access to their file, “with due regard for the legitimate interests of confidentiality and professional and business secrecy.”
However Art.298 TFEU is not the legal basis framing professional secrecy. It is only a provision on the functioning of the institutions and bodies which, “in carrying out their tasks … [must be based] on an “open” European administration”[13] and is not an article intended to ensure the protection of administrative documents.
This objective is better served by other legal basis of the Treaties.
First of all, protecting the archives of EU institutions and bodies from outside interference is, even before being a legitimate interest, an imperative condition laid down by the Treatiesand the related 1965 Protocol on the Privileges and Immunities of the Union adopted on the basis of the current Article 343 TFEU. Articles 1 and 2 of that Protocol stipulate that the premises and buildings of the Union, as well as its archives, “shall be inviolable.”
Furthermore, in order to ensure that, in the performance of their duties, officials are obliged to protect the documents of their institutions, Article 17 of the Staff Regulations stipulates that
1. Officials shall refrain from any unauthorized disclosure of information coming to their knowledge in the course of their duties, unless such information has already been made public or is accessible to the public.
Again, (as for Regulation 1049/01), the INFOSEC regulation reinstate that it should be applied “without prejudice” of the Staff Regulation by so mirroring the second paragraph of art.298 TFEU which states that itself states that it should be implemented “in accordance with the Staff Regulations and the rules adopted on the basis of Article 336.” So, also from this second perspective, the correct legal basis for INFOSEC could be the Article 339 (on professional secrecy) and 336 TFEU, with the consequent amendment of the Staff Regulations by means of a legislative regulation of the Parliament and the Council.
By proposing a legislative regulation on the basis of Article 298, the Commission therefore circumvents both the obligation imposed by Article 336, art 339 (on professional secrecy) and, more importantly of Article 15(3) TFEU, according to which each institution or body “..shall ensure (i.e., must ensure) the transparency of its proceedings [and therefore also their protection from external interference] and shall lay down in its rules of procedure specific provisions concerning access to its documents [and therefore also concerning their protection], in accordance with the regulations referred to in the second subparagraph.”(NDR currently Regulation 1049/01)
The objectives set out in Article 298 cannot therefore override the requirements of protecting the fundamental right of access to documents, nor those of Article 15 TFEU which could be considered the “center of gravity”when several legal basis are competing [14].
The same applies to compliance with the regulation establishing the Statute and, in particular, compliance with Article 17 thereof, cited above.
Ultimately, the provisions on the legislative procedure for Union legislative acts are not at the disposal of the Commission, given that administrative transparency is a fundamental right and the protection of documents is a corollary thereof and not a means of functioning of the institutions. Administrative transparency is a fundamental right of every person; the protection of administrative data is a legitimate interest of every administration.
A ”public” interest that can certainly limit the right of access, but only under the conditions established by the legislator of art 15 TFEU and only by the latter.
4. Conclusions
If a recommendation may be made now to the co-legislators is to avoid illusionary shortcuts such as the current Commission proposal whose real impact on the EU administrative “bubble” is far to be clear[15] . The EU Legislator, since the entry into force of the Lisbon Treaty more than fourteen years ago is faced to much more pressing problems.
What is mostly needed is not inventing several layers of illusionary “protection” of the EU information but framing the administrative procedures by law as suggested several times by the European Parliament and by the multiannual endeavor of brilliant scholars focusing on the EU Administrative law[16].
What matters is that the management and the access to EU information should be framed by law and not depend from the goodwill of the administrative author or the receiver as proposed by the INFOSEC Regulation. Nor information security is strengthened transforming each one of the 64 EU “entities” covered by the INFOSEC Regulation [17] in sand-boxes where the information is shared only with the people who, according to the “originator” has a “need to know” and not a “right to know”.
Moreover the EU should limit and not generalize the power for each one of the 64 EU entities of create “classified” information (EUCI). In this perspective art.9 of Regulation 1049/01 needs indeed a true revision but in view of the new EU Constitutional framework and of the new institutional balance arising from the Lisbon treaty and of the Charter.
Fourtheen years after Lisbon the democratic oversight of the European Parliament and the judicial control of the Court of Justice on classified documents , shall be granted by EU law as it is the case in most of the EU Countriesand not by interinstitutional agreements which maintain the “Originator” against these institutions in violation of the rule of law principle as well as of the EU institutional balance.
Could still be acceptable fourteen years after the entry into force of the Lisbon Treaty that the European Parliament and the Court of justice are not taken in account in the dozens of international agreements by which the Council frame the exchange of EUCI with third countries and international organizations?
Instead of dealing with these fundamental issues the European Commission in its 67 pages proposal makes no reference to 24 years of experience in the treatment of classified information and prefer dragging the co-legislators in Kafkian debates dealing with “sensitive but not classified information” or on the strange idea by which documents should marked “public” by purpose and not by their nature (by so crossing the line separating public transparency from public propaganda).
But all that been said, it is not the Commission which will be responsible before the Citizens (and the European Court) for badly drafted legislation. It will be the European Parliament and the Council which shall now take their responsibility. They can’t hide behind the Commission unwillingness to deal with substantive issues (as well as with other aspects of legislative and administrative transparency) ; if the Council also prefer maintain the things as they were before Lisbon it is up to the European Parliament to take the lead and establish a frank discussion with the other co-legislator and verify if there is the will of fixing the real growing shortcomings in the EU administrative “Bubble”.
Continuing with the negotiations on the current version of the INFOSEC proposal notably on the complex issue of classified information paves the way to even bigger problems which (better soon than later) risk to be brought as in 2000 on the CJEU table.
[1] According to the Venice Commission “.. at International and national level access to classified documents is restricted by law to a particular group of persons. A formal security clearance is required to handle classified documents or access classified data. Such restrictions on the fundamental right of access to information are permissible only when disclosure will result in substantial harm to a protected interest and the resulting harm is greater than the public interest in disclosure. Danger is that if authorities engage in human rights violations and declare those activities state secrets and thus avoid any judicial oversight and accountability. Giving bureaucrats new powers to classify even more information will have a chilling effect on freedom of information – the touchstone freedom for all other rights and democracy – and it may also hinder the strive towards transparent and democratic governance as foreseen since Lisbon by art.15.1 of TFEU (emphasis added) The basic fear is that secrecy bills will be abused by authorities and that they lead to wide classification of information which ought to be publicly accessible for the sake of democratic accountability. Unreasonable secrecy is thus seen as acting against national security as “it shields incompetence and inaction, at a time that competence and action are both badly needed”. (…) Authorities must provide reasons for any refusal to provide access to information. The ways the laws are crafted and applied must be in a manner that conforms to the strict requirements provided for in the restriction clauses of the freedom of information provisions in the ECHR and the ICCPR.”
[2] Action brought on 9 October 2000 by the Kingdom of the Netherlands against the Council of the European Union (Case C-369/00) (2000/C 316/37)
[3] Action brought on 23 October 2000 by the European Parliament against the Council of the European Union (Case C-387/00) (2000/C 355/31) LINK chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:C2000/355/31
[4] Regulation 1049/01 Article 9”Treatment of sensitive documents
1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as “TRÈS SECRET/TOP SECRET”, “SECRET” or “CONFIDENTIEL” in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.
2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.
3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.
4. An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.
5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected.
6. The rules of the institutions concerning sensitive documents shall be made public.
7. The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.
[5] Notice for the OJ.Removal from the register of Case C-387/001By order of 22 March 2002 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-387/00: European Parliament v Council of the European Union. OJ C 355 of 09.12.2000.
[6] Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy (OJ C 298, 30.11.2002, p. 1).
[7] According to the Interinstitutional Agreement of 12 March 2014 between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy (OJ C 95, 1.4.2014, pp. 1–7) “4. The Council may grant the European Parliament access to classified information which originates in other Union institutions, bodies, offices or agencies, or in Member States, third States or international organisations only with the prior written consent of the originator.”
[8] According to annex III point 5 of the Framework Agreement on relations between the European Parliament and the European Commission (OJ L 304, 20.11.2010, pp. 47–62) In the case of international agreements the conclusion of which requires Parliament’s consent, the Commission shall provide to Parliament during the negotiation process all relevant information that it also provides to the Council (or to the special committee appointed by the Council). This shall include draft amendments to adopted negotiating directives, draft negotiating texts, agreed articles, the agreed date for initialling the agreement and the text of the agreement to be initialled. The Commission shall also transmit to Parliament, as it does to the Council (or to the special committee appointed by the Council), any relevant documents received from third parties, subject to the originator’s consent. The Commission shall keep the responsible parliamentary committee informed about developments in the negotiations and, in particular, explain how Parliament’s views have been taken into account.”
[9] SEE : Agreements on the security of classified information Link : https://eur-lex.europa.eu/EN/legal-content/summary/agreements-on-the-security-of-classified-information.html
[10] Article 218.10 TFUE states clearly that “The European Parliament shall be immediately and fully informed at all stages of the procedure” when the EU is negotiating international agreements even when the agreements “relates exclusively or principally to the common foreign and security policy,” (art.218.3 TFUE).
[11] Interestingly reference to art.15 of the TFEU is also made in the EP-Council 2014 Interinstitutional Agreement on access to classified information (not dealing with External Defence) See point 15 : This Agreement is without prejudice to existing and future rules on access to documents adopted in accordance with Article 15(3) TFEU; rules on the protection of personal data adopted in accordance with Article 16(2) TFEU; rules on the European Parliament’s right of inquiry adopted in accordance with third paragraph of Article 226 TFEU; and relevant provisions relating to the European Anti-Fraud Office (OLAF)
[12] However this legal basis was fit for another legislative proposal, of a more technical nature, which has now become EU Regulation 2023/2841 layng down measures for a high common level of cybersecurity for the institutions, bodies, offices and agencies of the Union. This Regulation apply at EU administrative level the principles established for the EU Member States by Directive (EU) 2022/2555 (2) improving the cyber resilience and incident response capacities of public and private entities. It created an Interinstitutional Cybersecurity Board ( IICB) and a Computer Emergency Response Team (CERT) which operationalizes the standards defined by the IICB and interact with the other EU Agencies (such as the EU Agency dealing with informatic security, Enisa), the corresponding structures in the EU Member States and even the NATO structures. It may be too early to evaluate if the Regulation is fit for its purpose ([12]) but the general impression is that its new common and cooperative system of alert and mutual support between the EU Institutions, Agencies and bodies may comply with the letter and spirit of art.298 of the TFEU
[13] Quite bizarrely this “open” attribute is not cited in the INFOSEC proposal and, even more strangely, none of the EU institutions has until now consulted the EU Ombudsman and/or the Fundamental Rights Agency.
[14] See Case C-338/01 Commission of the European Communities v Council of the European Union(Directive 2001/44/EC – Choice of legal basis)“The choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases…”
[15] Suffice to cite the following legal disclaimer :”This Regulation is without prejudice to Regulation (Euratom) No 3/1958 17 , Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of other servants of the European Economic Community and the European Atomic Energy Community 18 , Regulation (EC) 1049/2001 of the European Parliament and of the Council 19 , Regulation (EU) 2018/1725 of the European Parliament and of the Council 20 , Council Regulation (EEC, EURATOM) No 354/83 21 , Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council 22 , Regulation (EU) 2021/697 of the European Parliament and of the Council 23 , Regulation (EU) [2023/2841] of the European Parliament and of the Council 24 laying down measures for a high common level of cybersecurity at the institutions, bodies, offices and agencies of the Union.
[16] See ReNEUAL Model Rules on EU Administrative Procedure. ReNEUAL working groups have developed a set of model rules designed as a draft proposal for binding legislation identifying – on the basis of comparative research – best practices in different specific policies of the EU, in order to reinforce general principles of EU law
[17] The Council has listed not less than 64 EU entities (EU Institutions Agencies and Bodies – EUIBAs) in document WK8535/2023
European Area of Freedom Security & Justice 
![“The advent of artificial intelligence (‘AI’) systems is a very important step in the evolution of technologies and in the way humans interact with them. AI is a set of key technologies that will profoundly alter our daily lives, be it on a societal or an economic standpoint. In the next few years, decisive decisions are expected for AI as it helps us overcome some of the biggest challenges we face in many areas today, ranging from health to mobility, or from public administration to education. However, these promised advances do not come without risks. Indeed, the risks are very relevant considering that the individual and societal effects of AI systems are, to a large extent, unexperienced.…”[2] Foreword 1. According to the European Commission the recent proposal for a regulation on Artificial Intelligence is consistent with the EU Charter of Fundamental Rights and the secondary EU legislation on data protection, consumer protection, non-discrimination and gender equality. Notably, it “complements” the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680) by setting “..harmonised rules applicable to the design, development and use of certain high-risk AI systems and restrictions on certain uses of remote biometric identification systems”. Is it true or the text is mainly economic oriented and fail to place the rights of those who will be subject to such AI systems at the heart of its reflection? 2. First of all it is worth noting that, while some commentators may have considered this new proposal to be the equivalent of the General Data Protection Regulation for AI, its general scheme is much more similar to Regulation (EU) 2019/1020 of 20 June 2019 on market surveillance and product compliance, the objective of which is to improve the internal market by strengthening market surveillance of products covered by Union legislation instead of protecting or promoting fundamental rights. The Commission’s proposal is essentially aimed at holding companies producing and marketing AI systems accountable, which is in itself a positive element in the context of the establishment of a European normative framework on artificial intelligence. According to EC Proposal AI systems must meet a number of criteria and undergo conformity assessment procedures, which are more or less stringent depending on the risks involved (see Articles 8 to 51 and Annexes IV to VIII [3] 3. However, it is quite surprising that the proposal is focused only on a “product”, (a “software” developed from techniques and approaches listed in an annex) and does not address the general notions of “algorithms” and “big data” which are the main feature artificial intelligence (AI) applications which needs huge amounts of data necessary to train it and it allowing, in return, to process the same data. By not referring directly on the nature of algorithms or the notion of big data, the Commission avoid placing the AI applications within the general framework of fundamental rights and data protection. Needless to say, a “right-based” approach is specular to the notion of ”duty” to protect that right by another individual or by the public administration. Take the case of Regulation 2016/679 or of Directive 2016/680 where the “rights of the data subject” are detailed in specific chapter whereas there is no similar provision in the AI proposal. Similarly, if the proposal defines AI system providers (“providers”), users (“users”), importers (“importers”) and distributors (“distributors”), it makes no reference at any time to persons who are subject to such systems. Moreover nothing, in particular, is said about the possible possibilities of recourse of individuals challenging the use of an AI system. By choosing a market centric approach the Commission is undermining the aim of placing the individual at the core of the EU policies as declared in the EU Charter preamble. I- Definitions and classifications 4. The proposal is built on a risk-based approach, but the classification of the systems as unacceptable, high or low is not clear: – Article 6 on the classification of high-risk systems is a simple description of the systems falling within this category, without justification of the reasons for the choices made, – Article 7, on the “amendments to Annex III”, which is the annex containing the systems considered to be high risk, does, however, contain a number of criteria which the Commission will have to take into account in order to add other systems in the future, if necessary.- However, the terms chosen lack precision: the systems referred to are those likely to harm health, safety or have a negative effect on fundamental rights («risque of adverse impact on fundamental rights»). But how to understand in this context the concept of negative effect? 5. The breakdown between the systems to be prohibited and those with a high risk is not further explained: why, for example, prohibit real-time remote facial recognition in public places for repressive purposes, But to authorize, considering them at high risk, the systems that, in terms of criminal prosecutions or management of migration, asylum and border control aim to detect the emotional state of a person? Similarly, what about systems that generate or manipulate audio or video content or images, which then appear to be falsely authentic, and which can be used in criminal proceedings without informing persons (section 52)? 6. Above all, this approach suggests that respect for fundamental rights may be variable in geometry, even though fundamental rights are not negotiable and must also be guaranteed, regardless of the level of risk presented by the AI system in question.[4] II- Articulation with data protection 7. In this proposal, the Commission’s position on the European data protection framework is characterized by its ambiguity: – Article 16 TFEU is one of the two legal bases of the proposal, alongside Article 114 TFEU. However, in its statement of reasons, the Commission is careful to point out that the basis of Article 16 concerns only those provisions relating to restrictions on the use of AI systems with regard to remote biometric identification in places accessible to the public and for the purposes of criminal proceedings (point 2.1. See also recital 2 of the proposal). However, the protection of individuals about the processing of their personal data cannot be limited to this single hypothesis, given the operating modalities of AI systems which, as indicated above, are based on massive data collections, which are not all non-personal or anonymized. In addition, anonymized data may in some cases be re-identified, and an interlaced set of non-personal data may identify individuals. In addition, anonymized data can be used to build profiles and have a direct impact on the privacy of individuals and create discrimination. – Recital 41 states that the new Regulation should not be understood as constituting a legal basis for the processing of personal data, including special categories of data. Nevertheless, under recital 41 above, the classification of an AI system as high risk does not imply that its use is necessarily lawful under other European legislation, in particular those relating to the protection of personal data, and the use of polygraphs and similar tools or other systems to detect the emotional state of individuals. That recital specifies to that end that such use should continue to occur only in accordance with the applicable requirements resulting from the Charter and Union law. It therefore seems to follow that certain provisions of this proposal may prove to be incompatible with other provisions of European law: far from «supplementing» the legislative framework on data protection, the future regulation may, on the contrary, open the way to situations of conflict of laws. – on the other hand, recital 72 states that this Regulation should provide the legal basis for the use of personal data collected for other purposes with a view to developing certain AI systems in the public interest in the case of AI regulatory “sandboxes”. However, as reminded above the Commission also states in its explanatory statement that this proposal is without prejudice to and complements the General Data Protection Regulation 2016/679 and Police Directive 2016/68 (point 1.2). 8. Furthermore, if certain AI systems authorized by this proposal are not to be approved because they would infringe the provisions of the Charter and European data protection law, this raises the question of the relevance of the proposed classification, if it legitimizes systems contrary to fundamental rights in general, and to data protection in particular. But who will decide at EU and national level which rule should prevail between the Data Protection and AI Regulations? The establishment of a new committee, the European Artificial Intelligence Committee, and the creation of national authorities responsible for ensuring the application of the proposal (Articles 56 to 59) risks to become a conflicting structure with the parallel decentralized structure for Data Protection and its European Data Protection Board and the EDPS [5]. III- Prohibitions and their limits 9. In a very symbolic way, the proposal opens, after a first title relating to the general provisions, with a title entitled “prohibited artificial intelligence practices”, which in reality only contains a single article, while the next title on high-risk systems consists of 46 articles. There are four systems considered unacceptable: – systems deploying subliminal techniques to distort a person’s behavior in a manner that causes or is likely to cause physical or psychological harm to the person or to another person; – systems exploiting the vulnerabilities of a specific group of people due to their age, physical or mental disability, to distort the behavior of a person belonging to that group in a manner that causes or is likely to cause physical or psychological harm; – systems used by public authorities for the evaluation or classification of the reliability of individuals over a period of time based on their social behavior or known or predicted personal or personality characteristics, with the establishment of a social score (“social score”) leading to one or both of the following: adverse or adverse treatment of persons in social contexts unrelated to the contexts in which the data were initially generated or collected; or/and adverse or adverse treatment of persons that is unjustified or disproportionate to their behavior or the seriousness of their behavior; – ‘real-time’ remote biometric identification systems in public spaces in a criminal context, unless and to the extent that such use is strictly necessary for one of the following purposes: the targeted search for potential victims of an offence, the prevention of a specific, serious and imminent threat to the life or safety of persons, or of a terrorist attack, the search, location, the identification or prosecution of the offender or a suspect, where the maximum penalty for the offence is at least three years. 10. It follows from this list that the prohibitions mentioned are subject to several limitations and prohibitions: – in the case of the first two prohibitions, they both imply at least the possibility of physical or psychological harm. However, with regard to vulnerable persons, the demonstration of the existence of a possibility of harm may be sensitive, – with regard to the prohibition of the social score, it is envisaged only to the extent that this score is established by public authorities (and not private entities) and leads to unfavorable treatment in a context unrelated to the context from which the data were collected or in cases where such treatment appears disproportionate. The reading of these conditions reveals that in reality the social score is not prohibited as such. This analysis is confirmed by the review of Annex III, which includes several high-risk AI systems. Among them, systems to assess the reliability of individuals or establish their credit score (“credit score”) in cases of access to and use of essential public and private services, – Finally, remote biometric identification systems are prohibited only if they aim at “real-time” identification, in public spaces and in criminal proceedings. 11. These limitations leave the field open to a posteriori identification, by private entities or by public authorities not acting in a repressive framework. It should also be noted that despite its regulatory form, the proposal leaves considerable room for manoeuvre for Member States to decide whether or not to use remote biometric identification systems in real time. IV- Uses in criminal matters 12. In addition to the exceptions to the aforementioned prohibitions on real-time remote biometric identification, the proposal allows the possible use of AI systems in criminal matters[6]. Annex III, which lists the high-risk systems referred to in Article 6(2), provides for the following systems: – systems intended to be used for the risk assessments for the commission of an offence or for recidivism by a person, or risk assessments for potential victims of an offence, – systems intended to be used as polygraphs and similar tools or to detect the emotional state of a natural person, – systems intended to be used to detect “deepfake” referred to in Article 52 (3), – systems intended for use in assessing the reliability of evidence during an investigation or criminal prosecution, – systems intended to be used to predict the occurrence or repetition of an actual or potential criminal offence, on the basis of the profiling of natural persons referred to in Article 3 para.4 of Directive 2016/680 or the assessment of personality traits and characteristics or past criminal behaviour of persons or groups, – systems intended to be used for profiling persons referred to in Article 3 par.4 of Directive 2016/680 in the course of the detection, investigation or prosecution of criminal offences, – AI systems for use in the analysis of crime involving natural persons, enabling law enforcement authorities to search for large datasets available in different data sources or data formats, to identify unknown patterns or to discover hidden relationships in the data. 13. Furthermore, a certain number of guarantees are limited or even excluded in the context of the use of AI systems in criminal matters: – prior authorisation by a judicial or independent administrative authority for the use of real-time remote biometric identification may be postponed in urgent cases, – Article 52, which seeks to impose an obligation to inform persons subject to certain systems, whether they are high-risk or not, excludes this obligation in criminal matters. This applies in particular to systems of emotional recognition or biometric categorisation, as well as those generating or manipulating audio, video or image content, which then appear to be falsely authentic, – finally, Article 43, on conformity assessment of systems, provides for an assessment limited to internal control for all systems considered to be high-risk, with the exception of those relating to biometric identification and the categorization of persons. 14. The framework proposed by the Commission paves the way for highly controversial practices, particularly in predictive policing. The doctrine is very divided on the added value of AI systems in the assessment of future behavior of offenders, highlighting the risks of discrimination inherent in the functioning of algorithms [7]. It is worth recalling that this practice has already been unfortunately authorized by the EU with the anti-Money Laundering legislation [8]and notably by the infamous EU Directive on the use of Passenger Name Record data [9]. On the latter practice the CJEU has already adopted a very interesting Opinion (1/15) [10] dealing with a draft EU-Canada PNR Agreement but is now again seized of this subject because of several Preliminary Ruling requests challenging the EU Directive compliance with the art. 7 and 8 of the EU Charter as well as the with the principles of necessity and proportionality [11]. 15. The possible use of lie detectors (“polygraphs”) also generates debate and there is no consensus on its use in criminal matters. It should also be pointed out that the Commission allows the use of polygraphs in the field of migration, asylum and the management of external borders, thus reinforcing the experience currently carried out under the “iBorderCtrl” project. Similarly, the possibilities for the use of a posterior biometric recognition systems are also the subject of criticism within doctrine and civil society. Thus, on May 27, 2021, the NGO Privacy International announced the filing of several claims in Europe against the American company Clearview AI [12], specialized in facial recognition and the commercialization of data collected to law enforcement. Conclusion The European Commission may have missed the opportunity here to ensure full respect for European values in the context of the ‘collective digital transformation dimension of our society’. Beyond the question of whether the AI proposal is fully compatible with European data protection legislation and the requirements of the European Charter, it is clear that when decisions are taken on the basis of AI applications individuals should have the right to specific explanations, and collective rights should also be strengthened as it is already the case in other domains of wider impact (as it happens with the Aarhus legal framework in the environment related legislation). Negotiations on the European Commission proposal are currently underway inside the European Parliament [13] and the Council of the EU [14]. Once established their respective positions the interinstitutional dialogue will start. In the meantime it is worth noting that the EP has already voted on October a non-legislative resolution curtailing the use of AI techniques for such activities as facial surveillance and predictive policing [15]. It remains to be seen if this “non-legislative” resolution will be mirrored in the coming months also in the legislative trialogue between the EP, the Commission and the Council where the pressure of the interior Ministers in favor of surveillance measures risks to remain rather strong. NOTES [1] I hereby thanks Mrs Michelle DUBROCARD working at the European Data Protection Supervisor Office for her unvaluable contribution and comments when drafting the present article. [2] EDPS and EDPB joint Opinion 5/2021 recalling also that “…in line with the jurisprudence of the Court of Justice of the EU (CJEU), Article 16 TFEU provides an appropriate legal basis in cases where the protection of personal data is one of the essential aims or components of the rules adopted by the EU legislature. The application of Article 16 TFEU also entails the need to ensure independent oversight for compliance with the requirements regarding the processing of personal data, as is also required Article 8 of the Charter of the Fundamental Rights of the EU.” [3] It is also likely that all these new obligations, which will have to be placed on the shoulders of companies, will not fail to revive the debate on the cumbersome nature of European legislation. [4] Consistently with this approach the EDPS and the EDPB in their Joint Opinion 5/2021 “…call for a general ban on any use of AI for an automated recognition of human features in publicly accessible spaces – such as of faces but also of gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioural signals – in any context. A ban is equally recommended on AI systems categorizing individuals from biometrics into clusters according to ethnicity, gender, as well as political or sexual orientation, or other grounds for discrimination under Article 21 of the Charter. Furthermore, the EDPB and the EDPS consider that the use of AI to infer emotions of a natural person is highly undesirable and should be prohibited.” [5] To avoid these risks, the future AI Regulation should clearly establish the independency of the supervisory authorities in the performance of their supervision and enforcement tasks. According to the EDPB/EDPS Joint Opinion cited above “..The designation of data protection authorities (DPAs) as the national supervisory authorities would ensure a more harmonized regulatory approach, and contribute to the consistent interpretation of data processing provisions and avoid contradictions in its enforcement among Member States.” [6] Furthermore, according to the EDPS/EDPB Joint Opinion 5/2021, “..the exclusion of international law enforcement cooperation from the scope set of the Proposal raises serious concerns for the EDPB and EDPS, as such exclusion creates a significant risk of circumvention (e.g., third countries or international organisations operating high-risk applications relied on by public authorities in the EU)”. [7] Literature on the risks of “Predictive Criminal Policy” is growing day by day. As rightly stated by A.Rolland in “Ethics, Artificial Intelligence and Predictive Policing” “First, the data can be subject to error: law enforcers may incorrectly enter it into the system or overlook it, especially as criminal data is known to be partial and unreliable by nature, distorting the analysis. The data may be incomplete and biased, with certain areas and criminal populations being over-represented. It may also come from periods when the police engaged in discriminatory practices against certain communities, thereby unnecessarily or incorrectly classifying certain areas as ‘high risk’. These implicit biases in historical data sets have enormous consequences for targeted communities today. As a result, the use of AI in predictive policing can exacerbate biased analyses and has been associated with racial profiling”. [8] Fight against money laundering and terrorist financing (AML/CFT) at EU level is governed by a number of instruments which have to provide for rules affecting both public authorities and private actors who constitute the obliged entities: supervision, exchange of information and intelligence, investigation and cross-border cooperation on the one side, and obligations such as reporting or customer due diligence on the other. For this reason, the relevant instruments are based on a number of different legal bases spanning from economic policy and internal market to police and judicial cooperation. On 20 July 2021, the Commission proposed a legislative package that should enhance many of the above rules. The package consists of 1)A Regulation establishing a new EU AML/CFT Authority; 2)A Regulation on AML/CFT, containing directly-applicable rules; 3-A sixth Directive on AML/CFT (“AMLD6”), replacing the existing Directive 2015/849/EU (the fourth AML directive as amended by the fifth AML directive); 4) A revision of the 2015 Regulation on Transfers of Funds to trace transfers of crypto-assets (Regulation 2015/847/EU); 5)A revision of the Directive on the use of financial information (2019/1153/EU), which is not presented as part of the package, but is closely related to it. [9] Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. [10] Opinion 1/15 pursuant to Article 218(11) TFEU — Draft agreement between Canada and the European Union — Transfer of Passenger Name Record data from the European Union to [11] The leading Case 817/19 has been raised by the Belgian Constitutional Court and it will give the opportunity to the CJEU to decide if the indiscriminate collection of passengers data and their scoring for security purposes through secret algorithms (as currently done also in some Third Countries) is compatible with the EU Charter and with the ECHR and does not amount to a kind of general surveillance incompatible with a democratic society. [12] In June 2020, the European Data Protection Board expressed its doubts about the existence of a European legal basis for the use of a service such as that proposed by Clearview AI . [13] See the current state of legislative preparatory works here : https://www.europarl.europa.eu/legislative-train/theme-a-europe-fit-for-the-digital-age/file-regulation-on-artificial-intelligence [14] See the State of the play diffused by the Council Presidency here: https://data.consilium.europa.eu/doc/document/ST-9674-2021-INIT/en/pdf [15] See the report Artificial intelligence in criminal law and its use by the police and judicial authorities in criminal matters,](https://free-group.eu/wp-content/uploads/2021/10/artificialintelligenceimage-1.jpg){kind=link}