On 1 August 2024, the Regulation laying down harmonised rules on Artificial Intelligence (AI Act) will enter into force. As a European regulation, the AI Act will apply directly in all 27 EU member states and is intended to make a significant contribution to achieving the European digital strategy (A Europe fit for the digital age).
In this, the second article in our series on the implementation of the AI Act, we provide an overview of the European AI governance structure. Understanding this structure is important to understand the roles of the administrative bodies that will have oversight and other roles, including to adopt the more than 80 follow-up measures expected under the AI Act in the coming years (e.g. implementing acts, delegated acts, guidelines) and the opportunities the governance structure will afford to companies.
As a European regulation, the AI Act will apply directly in all 27 member states. In order to ensure a harmonised and coordinated implementation and enforcement of the AI Act, Chapter VII of the AI Act provides for the creation of a comprehensive and multi-level governance framework. In addition to the central EU AI Office responsible for enforcing the GPAI provisions, three additional bodies will be created at the European level for this purpose:
- the European Artificial Intelligence Board (AI Board, Article 65 of the AI Act);
- the Advisory Forum (Article 67 of the AI Act); and
- the Scientific Panel of independent experts (Scientific Panel, Article 68 of the AI Act).
AI Board
The AI Board is established directly by the AI Act, without any further founding decision, and consists of one representative from each EU member state (Article 65 (2) of the AI Act. The AI Board is chaired by a representative of a member state (Article 65 (8) of the AI Act), which makes it similar to the European Data Protection Board in terms of its organisational structure.
In contrast to the EU AI Office, which is integrated into the administrative structure of the Directorate-General for Communication Networks, Content and Technologies (DG Connect), the AI Board is a separate institution from the European Commission in terms of organisation and personnel. However, the European Commission will participate in the meetings of the AI Board through representatives of the EU AI Office.
Unlike the EU AI Office (which is part of the Commission) or the designated national market surveillance authorities, the AI Board has no enforcement powers. The purpose of the AI Board is to coordinate AI policy between the European Commission (through the EU AI Office) and the member states. To this end, the AI Board is limited to a purely advisory function and has a "dual role".
At European level, the AI Board will advise and support the European Commission in the effective and harmonised implementation and enforcement of the AI Act. This will focus on opinions, recommendations and participation in the development of guidelines for the harmonisation of administrative practices in each member state, in particular with regard to the exemption from the conformity assessment procedure under Article 46 of the AI Act and the operation of AI regulatory sandboxes and tests under real conditions under Articles 57, 59 and 60 of the AI Act. Recital 149 of the AI Act also clarifies that the AI Board is to act as an advisory body for enforcement issues and standardisation under the AI Act. To this end, the AI Board will have a permanent sub-group for market surveillance and a permanent sub-group for notifications. The AI Board may also set up other standing or temporary sub-groups, as appropriate for assessing specific issues.
The AI Board has responsibility for receiving and evaluating opinions from the member states on warnings related to general purpose AI models and on national experiences and practices in the supervision and enforcement of AI systems, and to submit its findings to the European Commission. In this respect, the AI Board fulfils tasks that are parallel and overlapping with those of the EU AI Office and the Scientific Panel.
Advisory Forum
The AI Act also creates an Advisory Forum (Article 67 of the AI Act), which will be an expert panel for technical issues that will support both the European Commission and the AI Board. It will be made up of various interest groups, including representatives from industry, start-ups, SMEs, academia, think tanks and civil society (Article 67 (1) of the AI Act). The members of the Advisory Forum are appointed exclusively by the European Commission. Permanent members are the European Union Agency for Fundamental Rights (FRA), the European Network and Information Security Agency (ENISA), the European Committee for Electrotechnical Standardisation (CENELEC) and the European Telecommunications Standards Institute (ETSI). Its other members will be appointed by the European Commission.
The main task of the Advisory Forum is to issue opinions, recommendations and written statements at the request of the AI Board or the European Commission (Article 67 (8) of the AI Act). As with the AI Board, permanent or temporary sub-committees may be set up to carry out its tasks.
Scientific Panel of Independent Experts
The Scientific Panel of Independent Experts (Scientific Panel) will play a central role in assisting the EU AI Office in enforcing the provisions of the GPAI.
This panel, to be established by an implementing act, will be composed of scientists selected by the European Commission (Article 68 (2) of the AI Act). The experts on the panel must be independent of providers of AI systems or GPAI models, because the main task of the scientific panel will be to support the implementation and enforcement of the Regulation by the EU AI Office, particularly regarding GPAI models. This includes issuing warnings on potential systemic risks (see Article 90 of the AI Act), developing assessment tools and methodologies, advising on risk classification and categorisation of GPAI models, and supporting national market surveillance authorities and cross-border market surveillance. In addition, the Scientific Panel supports the EU AI Office in the context of the safeguard clause procedure under Article 81 of the AI Act.
AI Governance on the National Level
For AI governance at national level, the AI Act stipulates that each member state must maintain at least one notification authority and at least one market surveillance authority to enforce the AI Act (Article 70 (1) of the AI Regulation).
The AI Act leaves the specific structure to each member state. Member states may set up new authorities or assign tasks to existing authorities. In addition, several authorities can also share responsibility for market surveillance. In order to increase the efficiency of governance in member states and to create a single point of contact for the public and other contact persons at the member state and EU level, Article 70 (2) of the AI Act stipulates that each member state must designate a market surveillance authority as the single point of contact.
Article 69 of the AI Act also gives member states the option of using experts from the scientific panel to support the enforcement of the AI Act at the national level.
High friction loss due to many players?
While the multi-level European AI governance structure aims to create clear structures for the regulation of AI systems by strengthening coordination between the member states and the EU Commission and creating a central point of contact for AI Act issues in each member state, it remains unclear how efficient and effective this structure will be in practice. It cannot be ruled out that the broad composition of the various bodies and committees, in particular the Advisory Forum and the Scientific Panel, will create conflicts of interest and unclear responsibilities that stymie their effectiveness. Nevertheless, membership of the Advisory Forum in particular will offer companies and other stakeholders the opportunity to contribute their own experience and interests and actively influence the organisation of the European AI governance structure and the implementation of the AI Act.
For more information on the EU governance structure established by the AI Act, contact your CMS client partner or these CMS experts.
Social Media cookies collect information about you sharing information from our website via social media tools, or analytics to understand your browsing between social media tools or our Social Media campaigns and our own websites. We do this to optimise the mix of channels to provide you with our content. Details concerning the tools in use are in our Privacy Notice.