Legal conclusions on societal trends from the 2nd Mobility4EU workshop

By Yves Stans & Stefania Grosso, Osborne & Clarke

This article reflects the initial legal conclusions that can be drawn from the second workshop of the MOBILITY4EU project, which took place on 5 July 2016.

1. The US invents, China copies and the EU regulates

As we heard one of the speakers say on the topic of robotics: it will happen in the future, but there’s no need for regulation. Quite the contrary, regulation is needed, preferably by the European Commission to ensure a true Digital Single Market. The most important aspect is efficient regulation, which requires the correct tools. The European Commission can use directives and regulations for this purpose. While the first instrument imposes a common goal on the Member States, which, in their turn, dispose of a certain freedom to transpose a directive into national law, a regulation imposes full legislation on Member States without them having any choice in the transposition. The latter instrument is therefore fundamental to achieve a true Single Market, both on the digital and on the mobility side. Indeed, a considerable part of transport will be digital in the future. The European Commission is already actively regulating quite a few areas of law. In the field of data protection, the new General Data Protection Regulation is expected, which will entail significant changes in the applicable law. With the discussion between legal scholars on the notion of an “industrial data protection right”, further developments in this field are to be expected. Political issues also impact law and the Single Digital Market without having any certainty on which way some developments would be heading, such as Brexit. The European Union is also quite active in the standardisation field: it has emitted a new Standardisation Package and has formed several working committees to discuss standards and access to data. The consortium members raised various other issues, such as tax incentives. In order to create an efficient new mobility framework, we need to establish the most efficient tax regulation scheme. Yet, would it be to incentivise companies for entering the EU market or to punish them for bad behaviours?New infrastructures are also required, but what is the risk of state aid implications? Access to data, access to information, geo-blocking and the essential facility doctrine are but few of the competition law notions that might be applied in the near future. This might be the time to implement a “competition by design” criterion when the European Commission emits new rules and legislation. Reference was also made to robotics and Artificial Intelligence (“AI”). AI is developing at a strong pace, and is even being used by some mobility players such as Tesla. At EU level, discussions are currently on-going about whether robots with AI should be granted a specific legal status, for instance for social security implications, but also, on a more general level, how liability should be allocated.

2. “Is Big Brother watching”?

The workshop led to some wonderful suggestions, such as gamification in order to entice citizens to move more, and better. But what happens to all the collected data? Will Big Brother be watching every step? As mentioned during the workshop, data are just a lot of 1’s and 0’s, whereas humans aren’t numbers. There are various new business models already impacting existing legislation and even leading to new legislation in relation to mobility. Take for instance the heated discussion on Uber and the future of (licensed) taxi drivers. Insurance companies are already monitoring driver behaviour to assess the way drivers are driving their cars in order to propose an insurance cover. In certain Member States, national authorities track a citizen’s health via m-health applications in order to assess and improve social security systems. Taking the difference in approach between iOS apps and Android apps as a starting point, a discussion erupted whether or not the definition of “consent” needed to be reviewed in order to adapt it to all these new technologies that are erupting. Yet the most important concern in relation to data seemed to be safety and cybersecurity, and how such cybersecurity is to be attained. The participants did agree that to these means, the European Commission has a fundamental role to play, for instance via standardisation.

3. Like humans, machines break down

When discussing legal implications, liability cannot go unnoticed. Various specific examples were discussed to establish that again the European Commission needs to regulate to ensure the true Single Mobile Market. Many questions remain unanswered: if a drone delivering goods lands on a car and damages the car, who is responsible? What is the impact of consumer rights, for instance when developing all-in-one travel applications? There have been quite a few accidents involving self-driving cars lately, and the liability issue is a big factor that is not yet very clear. If passenger and freight combinations are developed, what kind of insurance is required? Or are additional taxes levied?The consortium discussed various extremely interesting potential and existing use cases, yet the main conclusion is that there is a vast amount of work to be done from a legal perspective in order to make sure that all these developments are not hampered, while remaining safe for the consumer.