Towards Smarter EU Tech Rules – Step 1: How to Prepare New Digital Laws?
Best practices
- Evaluate need for legislation based on impartial and credible evidence
- Assess the economic impact of any new legislation
- Ensure new proposals are coherent with existing EU rules
Future EU digital legislation should only seek to address specific and quantifiable issues that Europeans face daily. To avoid unintended consequences down the line, the EU has to make sure that any new rules are well-designed, evidence-based, and problem-focused.
Since 2019, the overwhelming wave of new EU tech rules has exposed structural shortcomings in the EU legislative process, but it also offers valuable lessons for improvement. In this article, I explore the first of three critical steps that Europe urgently needs to take to develop stronger, more effective digital laws.
Let’s dive into that crucial first phase of the legislative process, when it’s necessary to evaluate whether new EU legislation or revisions are actually needed. Drawing on firsthand experience, I outline three best practices and share insights on what works and what doesn’t.
1. Evaluate need for legislation based on impartial and credible evidence
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Collect sufficient evidence to substantiate any conclusions or proposals for regulatory intervention | ❌ Rushing to propose legislation on nascent technologies, unless clear and immediate threats arise |
| ✅ Commit to strategic planning techniques, e.g. SWOT analysis and more thorough impact assessments | ❌ Applying unitary solutions to diverse, heterogeneous business models |
| ✅ Consider soft-law tools (codes, guidelines, recommendations, etc) first when addressing a new trend, instead of going overboard by directly opting for hard law | ❌ Considering legislative changes in isolation |
| ❌ Proposing legislation without clear justification and clarity on impact |
Indeed, any proposal for new EU tech regulation should adhere to a genuine evidence-based approach. This means that proposals should be substantiated and quantified by truly independent third-party sources, before deciding whether or not to create a new piece of legislation or to overhaul existing law.
Such an approach would result in better problem-solving and help to identify effective intervention measures. Equally important it would also show and justify when regulatory intervention clearly is not needed. And that, frankly speaking, is something that rarely ever happens here in Brussels.
For example, the impact assessment conducted by the European Commission to justify the revision of the Product Liability Directive was simply not able to quantify the number, nor the nature, of cases where consumers face difficulties in claiming compensation for defective products. Whenever this is the case, the argument for regulatory intervention has to be reconsidered altogether. If a proposal is not supported by evidence it has to be abandoned – it should be as simple as that.
2. Assess the economic impact of any new legislation
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Carry out economic studies on the potential impact of new regulation on the tech landscape and society at large | ❌ Underestimating the impact of new legislation on innovation and scalability |
| ✅ Make sure to also look at the impact on new entrants and scale-ups | ❌ Assuming compliance costs are minimal for companies |
| ✅ Take into account the downstream, indirect economic impact of tech rules on other sectors (e.g. agriculture, automotive, healthcare) | ❌ Not considering the recommendations of the Regulatory Scrutiny Board |
| ❌ Coming up with rules that are designed to only target certain companies |
The impact of new tech regulations on companies, European consumers, and the economy at large has to be properly assessed before considering moving forward with new EU rules or revising existing legislation. Beyond direct compliance costs, the impact of new rules on innovation, competitiveness, and consumer choice should also be carefully quantified. Too often these three key aspects still tend to be ignored in the Commission’s current impact assessments, even though the wider impact on society should weigh much heavier.
Indeed, the Commission proposed an AI Liability Directive (AILD) in late 2022, which relied heavily on the definitions and concepts of the (then) proposal for an AI Act. This happened right at a time when the AI Act was undergoing significant (and untested) legislative changes by the co-legislators. The exact scope and concrete impact of the AILD were therefore difficult, if not impossible, to assess. What is more, the AILD’s impact assessment lacked substantial information about its impact on innovation and competitiveness.
3. Ensure new proposals are coherent with existing EU rules
| WHAT WORKS | WHAT DOES NOT WORK |
|---|---|
| ✅ Assess whether existing legislation already addresses (either partially or fully) an issue before proposing new rules | ❌ Proposing new legislation prior to proper evaluation of the existing framework |
| ✅ If there is overlap between rules, wait until all existing ones have been implemented and properly enforced before proposing any new legislation | ❌ Copying terminology and concepts from other legislation (with different objectives) |
| ✅ Take into account the downstream, indirect economic impact of tech rules on other sectors (e.g. agriculture, automotive, healthcare) | ❌ Creating conflicting obligations in different pieces of legislation |
| ❌ Rushing the legislative process for short-term political gains |
Legal texts under consideration should always be weighted against existing ones in order to avoid the creation of a patchwork of overlapping and conflicting rules. Safeguarding the coherence of the overall EU framework should be a key priority, as it ensures legal certainty for users, regulators, and business alike.
Right now, new digital rules are often still written and decided in parallel, but the fact that these work streams are not being coordinated ends up creating major practical and legal tensions. That’s why policy should always be informed by a comprehensive understanding of existing EU rules, their effects, and where gaps may or may not exist.
For instance, the recent Fitness Check of EU Consumer Law – that served as a justification for the upcoming Digital Fairness Act – cannot reasonably have taken into account or evaluated the implementation of the Digital Services Act, Digital Markets Act, and AI Act – to only name a few landmark rules for which implementation is still underway.
Next step: more legislative scrutiny
Stay tuned for my upcoming second article in this series, which will explore how increasing scrutiny of the legislative process will help to improve the quality and longevity of EU tech regulation – again looking at what has proven to work in practice and what does not.
