Free movement of algorithms within the EU

Freedom of establishment, one of the four freedoms of the European Union single market, will allow artificial intelligence (AI) with legal personality to move freely and be recognised within the EU single market.

In a recent research paper published in Switzerland, it is argued that AI that enjoys legal personality under a member state’s national law can invoke freedom of establishment to have its personality recognised in other member states. A member state would also be prohibited from enacting legislation that curbs AI. This would essentially come down to “free movement of algorithms”.

If one of the 28 EU member states does in fact grant some form of legal personality to AI, the potential effects will be vast as each of the other 27 would be obliged to recognise such legal personality, regardless of what their own domestic laws state.

While no EU country currently recognises legal personality of robots, the European Parliament in 2016 issued an official request for the Commission to submit to the European Parliament an official proposal for civil law rules on robotics. The Commission has not yet submitted any proposal to Parliament.

These developments indicate that the EU is starting to think about how to treat robots. While the immediate future of legal recognition of AI in the EU is unclear, it is certain that robots will not rust in peace.

The author would like to thank Adriaan Louw for his assistance in preparing this update.