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Implications of Regulating a Moving Target: Between Fixity and Flexibility in the EU AI Act

Larsson, Stefan LU ; Hildén, Jockum LU and Söderlund, Kasia LU (2025) In Law, Innovation and Technology 18(1).
Abstract
The EU AI Act aims to regulate artificial intelligence (AI) in a way that balances innovation and protection from harms, but faces the challenge of keeping pace with the development of AI. This paper examines the tension between fixity and flexibility when regulating AI in the EU by drawing on literature on the pacing problem and anticipatory governance, contrasted by sociolegal theory on the importance of predictability and legal certainty. Specifically, it analyses how the AI Act, under the aim of being “future-proof”, per relatively newfound EU terminology, employs various flexible mechanisms, such as i) voluntary measures and codes-of-conduct as soft governance, ii) delegated and implementing acts, iii) Commission’s decision, and iv)... (More)
The EU AI Act aims to regulate artificial intelligence (AI) in a way that balances innovation and protection from harms, but faces the challenge of keeping pace with the development of AI. This paper examines the tension between fixity and flexibility when regulating AI in the EU by drawing on literature on the pacing problem and anticipatory governance, contrasted by sociolegal theory on the importance of predictability and legal certainty. Specifically, it analyses how the AI Act, under the aim of being “future-proof”, per relatively newfound EU terminology, employs various flexible mechanisms, such as i) voluntary measures and codes-of-conduct as soft governance, ii) delegated and implementing acts, iii) Commission’s decision, and iv) harmonised standards. The analysis shows that with this flexibility follows trade-offs such as reduced legal predictability, which is concerning since predictability is essential for ensuring trust and legal certainty in the regulatory framework, as well as a problematic shift in powers to the Commission and standardisation organisations. (Less)
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author
; and
organization
publishing date
type
Contribution to journal
publication status
in press
subject
keywords
AI Act, Pacing problem, legal certainty, legal flexibility, general purpose AI, delegated acts, harmonised standards
in
Law, Innovation and Technology
volume
18
issue
1
pages
42 pages
publisher
Taylor & Francis
ISSN
1757-9961
project
The Automated Administration: Governance of ADM in the public sector
Exploring the risk governance mechanisms under the forthcoming EU Artificial Intelligence Act
Vulnerability in the Automated State
language
English
LU publication?
yes
id
92c6a01d-fc41-4331-a744-e57f32b4d059
date added to LUP
2025-04-09 16:13:14
date last changed
2025-05-19 11:12:17
@article{92c6a01d-fc41-4331-a744-e57f32b4d059,
  abstract     = {{The EU AI Act aims to regulate artificial intelligence (AI) in a way that balances innovation and protection from harms, but faces the challenge of keeping pace with the development of AI. This paper examines the tension between fixity and flexibility when regulating AI in the EU by drawing on literature on the pacing problem and anticipatory governance, contrasted by sociolegal theory on the importance of predictability and legal certainty. Specifically, it analyses how the AI Act, under the aim of being “future-proof”, per relatively newfound EU terminology, employs various flexible mechanisms, such as i) voluntary measures and codes-of-conduct as soft governance, ii) delegated and implementing acts, iii) Commission’s decision, and iv) harmonised standards. The analysis shows that with this flexibility follows trade-offs such as reduced legal predictability, which is concerning since predictability is essential for ensuring trust and legal certainty in the regulatory framework, as well as a problematic shift in powers to the Commission and standardisation organisations.}},
  author       = {{Larsson, Stefan and Hildén, Jockum and Söderlund, Kasia}},
  issn         = {{1757-9961}},
  keywords     = {{AI Act; Pacing problem; legal certainty; legal flexibility; general purpose AI; delegated acts; harmonised standards}},
  language     = {{eng}},
  month        = {{04}},
  number       = {{1}},
  publisher    = {{Taylor & Francis}},
  series       = {{Law, Innovation and Technology}},
  title        = {{Implications of Regulating a Moving Target: Between Fixity and Flexibility in the EU AI Act}},
  url          = {{https://lup.lub.lu.se/search/files/216703312/Larsson_Hild_n_S_derlund_accepted_preprint_Between_Regulatory_Fixity_and_Flexibility_in_EU-AI-Act.pdf}},
  volume       = {{18}},
  year         = {{2025}},
}