The European Charter of Fundamental Rights emphasizes the right to an effective remedy, which is crucial for ensuring that any violation of rights in the EU is addressed. This principle applies whether the violation was by EU institutions or member states implementing EU law. The right to an effective remedy allows individuals to hold these entities accountable.
In the digital sphere, including AI, challenges arise that make accessing effective remedies difficult. AI systems often lack transparency, and individuals may not be aware of how they are affected by such systems. Traditional legal procedures struggle to keep pace with digital advancements, complicating matters further.
The European Commission's Digital Fairness report highlights these challenges, noting that procedural burdens can render compensation claims ineffective even when sufficient information is available. The AI Act addresses some transparency issues by requiring providers to disclose AI usage unless obvious and notify individuals subjected to high-risk AI decision-making. However, transparency alone does not ensure effective remedies.
To address this, the European Commission proposed the AI Liability Directive (AILD) in 2020 alongside developing the white paper leading to the AI Act. The AILD aims to ease procedural burdens for complainants but faces difficulties in implementation.
The AI Act itself does not fully resolve the issue of effective remedies. It introduces rights such as obtaining explanations for decisions made by high-risk AI systems and lodging complaints with market surveillance authorities. However, it lacks mechanisms compelling authorities to engage substantively with complaints.
Unlike data protection laws like the General Data Protection Regulation, which provide a right to judicial remedy against supervisory authority decisions, the AI Act offers no similar safeguards. This leaves national regulators potentially unaccountable if they fail to act on complaints about harm caused by AI systems.
As discussions on effective remedies continue amidst calls for innovation within the EU, CDT Europe plans to explore how existing laws beyond the AI Act can enhance access to remedies for harms induced by AI.
