Since the creation of the European Coal and Steel Community1, economic considerations have underpinned the decisions of what would later become the European Union. In 1957, the Treaty of Rome was adopted, establishing the common market for the Member States of the European Economic Community2.
Later, with the development of technology, a digital market emerged, supported by one of the Union’s foundational principles: market freedom3. This has become one of the greatest achievements of the European Union, ensuring that goods, services, people, and capital can move freely across the EU.
The current question revolves around the ability to move goods and services without physical displacement but through digital networks. To address this new cross-border trade scenario, the EU has developed a strategy for the “Digital Single Market ” since 2015. Its goal is to ensure that the European economy, industry, and society fully leverage the digital age.
The objectives of this policy are to improve access to digital goods and services, create the appropriate environment for digital networks and services by providing high-speed, secure, and reliable infrastructures, and finally, recognize digital technology as a driver of growth, maximizing the potential of the European digital economy.
There is a noticeable shift in strategy, reflecting a more refined definition of the Union’s goals and priorities. In March 2021, the European Commission proposed a plan to achieve the digital transformation of the EU economy and society called the “2030 Digital Compass.”
From the liberal conception of the early years5, there is a shift towards the social and rights implications of this technological progress. The “Digital Compass” aims to create a secure, human-centered digital ecosystem where citizens are empowered, and businesses thrive by leveraging digital potential6. The Compass outlines four cardinal points: digital skills, secure and performant digital infrastructure, digital transformation of businesses, and digitalization of public services.
Although the initial goal was to promote a united and sustainable European digital society, early-stage faith in technology led to an approach where market freedom prevailed without substantial legal limits.
Therefore, there appears to be a contradiction between the objectives of economic progress and the protection of fundamental rights. This is evident in issues like the misuse of information, lack of data protection, insufficient guarantees for digital transactions, risks to freedom of expression on social media, or ideological profiling abuses.
Is there, then, a contradiction between the goals of innovation and fundamental rights protection?
As the digital strategy has evolved, so have digital rights, demanded by internet consumers, users, associations, and civil society. In a sort of constitutive process, a body of digital rights has emerged in various European countries, along with ethical codes within the EU. However, it was only recently incorporated into binding EU law.
Thus, there is no inherent contradiction but rather a situation requiring optimization of the legal goods at stake.
The European Union has developed a specific legal framework tailored to its challenges to implement proportional measures that ensure a balanced approach between technological innovation and fundamental rights protection.
The combination is not simply an overlay of objectives but an optimization of them. To unpack this concept, we must turn to the idea of Digital Constitutionalism, a contemporary legal research trend that seeks to address power imbalances in the digital environment due to the growing economic and social responsibilities of companies, which now perform quasi-public functions without the corresponding accountability, as the state would be obliged in the exercise of tasks affecting human rights7.
Digital Constitutionalism has emerged as a legal theory that informs the way European Union laws are made. It is characterized by a risk-based legislative approach. Regulations enacted since 2016, such as the General Data Protection Regulation, the Digital Markets Act, and the recent Artificial Intelligence Act, share the common feature of adjusting the obligations according to the risk posed by the technologies to human rights.
These laws also allow some discretion for the regulated parties, enabling them to assess and adjust their activities to meet established standards.
This approach by European institutions puts into practice a precautionary principle aimed at optimizing innovation while ensuring the protection of fundamental rights. To sustainably address the uncertainties of ever-evolving technologies while enabling technological progress, these laws have been designed with political prudence, establishing limits on technology use but leaving some leeway for operators.
This way of legislating has been replicated in the regulations of the past decade, consolidating the legal framework for the digital economy. It allows businesses and service providers to operate smoothly and with knowledge of the limits of their actions. However, we are still in the early stages of this new “constitutional moment”8, and much work remains in building a solid legal framework, closing gaps, and creating practical guides and standards that ensure full awareness when conducting digital activities9.
In conclusion, we can affirm that the EU, in exercising its legal leadership in the technological era, has pursued citizens’ trust as the ultimate goal—an essential prerequisite for progress and security.
References
1. European Coal and Steel Community. Document 11951K/TXT Treaty establishing the European Coal and Steel Community. Available: https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:11951K/TXT
2. European Union, Treaty Establishing the European Community (Consolidated Version), Rome Treaty, -, 25 March 1957.
3. Treaty on European Union OJC 191, p. 1–112, 29 July 1992.
4. European council. Un mercado unico digital para Europa. https://www.consilium.europa.eu/es/policies/digital-single-market/
5. De Gregorio, G., “The rise of digital constitutionalism in the European Union”, International Journal of Constitutional Law, Volume 19, Issue 1, (2021), Pages 41–70, https://doi.org/10.1093/icon/moab001.
6. Document 52021DC0118. Communication from the Commission to the European Parliament, The Council and the European Economic and Social Committee and the Committee of the Regions 2030 Digital Compass: the European way for the Digital Decade. COM/2021/118 final.
7. Ídem 5
8. Celeste E. “Digital constitutionalism: a new systematic theorization”. International Review of Law, Computers and Technology, 33 (1):76-99. (2019).
9. Grozdanovski, L., & De Cooman, J. (September 2023). Forget the Facts, Aim for the Rights! On the Obsolescence of Empirical Knowledge in Defining the Risk/Rights-Based Approach to AI Regulation in the European Union. Rutgers Computer and Technology Law Journal, 49 (2), 287
