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At the heart of the negotiations for the New Pact on Migration and Asylum lies one of its most contentious elements: the regulation of border procedures. During the Council negotiations, the Asylum Procedures Regulation (APR) underwent significant modifications, particularly in the provisions that regulate border procedures, to incorporate perspectives from all Member States. Despite expectations for improvements during trialogues with the Parliament, the final outcome in December 2023 witnessed a step back from many of the anticipated safeguards. Border procedures are perceived in the agreed text as an important ‘migration management tool’ and as a responsibility mechanism, mandating the examination of asylum applications at the borders, while asylum seekers will be subject to the ‘non-entry’ fiction. This blogpost aims to examine the complex landscape of border procedures based on the final text of the APR.

The Arduous Negotiations on Border Procedures

The EU Pact placed a paramount emphasis on the EU’s external borders, introducing a  ‘seamless link’ between all stages of the pre-entry phase, from the screening procedure, to an expanded use of asylum border procedures and where applicable, return border procedures for rejected asylum seekers. Border procedures involve the swift processing of asylum claims at border locations, while third-country national are subject to the ‘non-entry’ fiction. The main reason for their implementation is to guarantee the first-entry states’ responsibility by keeping asylum seekers at the external borders and preventing secondary movements within the EU. Despite being initially regulated in only two provisions within the amended proposal for an APR (Article 41 and 41a APR), the final text includes twelve provisions on  border procedures (Article 43-54 APR), highlighting their contentious nature during the negotiations and the difficulty of Member States in reaching an agreement.

The most difficult and divisive question during the negotiations was whether border procedures should be obligatory or voluntary.  On the one hand, central EU countries sought to make the use of border procedures obligatory to prevent  ‘secondary’ movements of asylum seekers and manage migration at the EU external borders. On the other hand, southern EU states opposed this, given that their widespread implementation would place a further strain on their resources and overburden their capacities for processing asylum claims. In addition, they argued that whether or not to apply border procedures, as well as the categories of persons to whom these should apply, should remain a prerogative of Member States, that are best placed to decide if a procedure is feasible given their specific circumstances.

Despite years of negotiations, with the APR text being discussed since 2016, the outcome is an extended regulation of border procedures, rendering them mandatory in some cases. This prolonged negotiation process has resulted in a complex framework with many provisions designed to accommodate the diverse interests of all involved Member States.

The scope of application of border procedures

Despite challenging negotiations on border procedures, the agreed text extends their scope of application (Articles 44-45 APR). Firstly, it renders their use mandatory when certain acceleration grounds are met. The mandatory application of border procedures is stipulated for those that have a low probability of international protection (20%) according to Union-wide average Eurostat data (Article 45 APR), those who pose potential threats to national security or public order and cases involving applicants who mislead the authorities. Regarding the last category of applicants, the APR text foresees that ‘after having been provided with a full opportunity to show good cause‘, those considered to have intentionally misled the authorities are subject to mandatory border procedures. While this wording aims to guard against arbitrary practices, there still remains a risk of wide interpretation by authorities.

Regarding the first reason, and according to the Council, an effective and meaningful border procedure should ensure that the number of persons that would actually be channeled to the border procedure remains high, and despite proposals from the Parliament to reduce the threshold  to 10%, the recognition rate of 20% remained in the final text with a corrective mechanism introduced during the negotiations with the Parliament (Article 45 and Article 42j APR). The corrective mechanism allows authorities to deviate from this threshold if there has been a significant change in the applicant’s country of origin since the publication of the relevant Eurostat data. It also allows states to take into account significant differences between first-instance decisions and final decisions (appeals). For example, if there is a notable discrepancy indicating that many initial rejections are overturned on appeal, this could be a factor in deciding not to apply the border procedure to an applicant from that country. However, this practice introduces a nationality-based criterion for the application of border procedures which may lead to discrimination, and it also raises important issues as there are significant discrepancies in the recognition rates of asylum seekers across European countries.

In addition to these obligatory cases, border procedures may be used at the discretion of authorities to examine the merits or the inadmissibility of an application under certain conditions. Specifically, this discretion applies if any of the circumstances listed in Article 42(1), points (a) to (g) and (j), and Article 42(3), point (b), are met, as well as when there is an inadmissibility ground in accordance with Article 38. This discretionary use could impede harmonization across the EU due to varying interpretations and implementations by different Member States.

Moreover, the regulation broadens the personal scope of border procedures, allowing their application following the screening, and when an application is made a) at an external border crossing point or transit zone (this was also foreseen in the APD), but also b) following apprehension in connection with an unauthorized border crossing of the external border, which means that individuals who are already within the territory of a Member State could be subjected to border procedures, and finally c) following disembarkation after a search and rescue operation (Article 43 APR).

Another important aspect discussed during the negotiations was the application of border procedures to unaccompanied minors with an agreement on excluding them from border procedures always, except for national security grounds (Article 53 (1) APR). Families with minors will be included in border procedures with additional safeguards: de-prioritisation of their examination and always reside in facilities that comply with the Reception Conditions Directive(RCD). Specifically, Article 44 (3) APR foresees that where the number of applicants exceeds the number referred to in the provision that regulates the member State’s adequate capacity level, priority shall be given to applications of certain third-country nationals that are not minor applicants and their family members. To the contrary, following admission to a border procedure, priority shall be given to the examination of the applications of minor applicants and their family members. Finally, vulnerable individuals will be exempted from border procedures only when it is assessed that the ‘necessary support’ cannot be provided to applicants with special reception or procedural needs (Article 53 (2) APR).

The concept of adequate capacity

In exchange for increased responsibility of frontline states through the wide implementation of border procedures, the APR introduces the concept of ‘adequate capacity’, with two distinct levels identified: the Union-level which is set at 30,000 (Article 46 APR), though the derivation of this figure remains unexplained, and the individual Member State level which is calculated based on numerical factors: by multiplying the number set out in Article 46 (Union-level adequate capacity) by the sum of irregular crossings of the external border, arrivals following search and rescue operations and refusals of entry at the external border in the Member State concerned during the previous three years and dividing the result thereby obtained by the sum of irregular crossings of the external border, arrivals following search and rescue operations and refusals of entry at the external border in the Union as a whole during the same period according to the latest available Frontex and Eurostat data (Article 47 APR). Only applications subject to the border procedure should be calculated towards reaching the adequate capacity.

Once ‘adequate capacity’ is reached (Article 48), the Commission will be notified and it will have to examine if the state is identified as being under a migratory pressure according to the Asylum and Migration Management Regulation. In such case, states will be able to derogate from the provisions that mandate the use of border procedures, and e.g. choose to keep asylum seekers at the borders and refer them in regular asylum procedures or transfer them within the territory and once again implement regular asylum procedures. However, such authorisation will not exempt the Member State from the obligation to examine in the border procedure applications made by applicants that are considered as a danger to national security or public order.

The introduction of the concept of ‘adequate capacity’ was designed to render the prescribed use of border procedures cognizant to the needs and migratory pressures on first-entry states and in this way to ensure their buy in. However, the final provisions demonstrate that the calculation of ‘adequate capacity’ is rather complex, while it relies solely on numerical data, overlooking the specific characteristics of arrivals or the actual capacity of first-entry countries. It seems that, in essense, this concept was added to ensure ‘predictability‘ by making sure that southern states will fulfill their responsibilities by examining a minimum number of applications through border procedures.

In addition, this will in practice incentivise Member States to use even more border procedures to reach their ‘adequate capacity’, in detention or other designated spaces created for these procedures, turning the process into a ‘lottery’ largely dependent on the timing of arrivals. If a person arrives before the ‘adequate capacity’ is reached, they will most probably be subjected to border procedures. Conversely, if they are fortunate enough to arrive once the capacity is reached, their cases will be examined under a regular asylum procedure with more safeguards. Finally, this approach is also potentially hindering harmonisation by prioritising national-level exception measures over solidarity and relocation in times of pressure. 

Rights at Risk

Although border procedures were initially implemented exceptionally in some Member States to address the 2015-2016 refugee ‘crisis,’ this practice has become the ‘norm’ in certain Member States, such as Greece and Italy, where they are routinely applied, even in situations with no notable increase in arrivals. It is expected that their use will rise as border procedures become mandatory for certain categories of asylum seekers.

Border procedures have been described as sub-standard procedures, due to the fast processing of asylum claims, the locations where these procedures are implemented, and the legal fiction of ‘non-entry’, a concept which means that asylum seekers will be considered as not entered into the territory while their claim will be examined in a border procedure. This provision is also maintained in the final text (Article 43 (2) APR). The legislation creates therefore avenues for disentangling the relation between physical presence of an asylum seeker on the territory and the legal presence. As scholars have pointed out, this legal fiction, justifies the creation of  ‘liminal’ space or ‘anomalous’ zones where common legal rules do not fully apply. Notably, Article 54 APR, allows their implementation within the territory, justifying the application of the ‘non-entry’ fiction even in locations far away from the actual territorial border. By shifting the border inwards, entire areas are treated as ‘borders’, and asylum seekers in these locations are subjected to a different, often more restrictive, set of rights compared to those who apply for asylum through regular in-country procedures. This practice can imperil several key rights of asylum seekers as it will be described below. 

Towards more detention

During border procedures, asylum seekers should be kept at or close to the borders, leading to increased and systematic detention or other area-based restrictions. Within the APR, detention is not prescribed clearly, but it is not precluded either (Article 54 APR). The legal basis for imposing detention during border procedures can be found however in the agreed Reception Conditions Directive, where it is envisaged that detention may be imposed ‘in order to decide, in the context of a procedure, on the applicant’s right to enter the territory’ (Article 8c RCD). To what extent policies of non-entry undermine the right to liberty and freedom of movement is a matter raised many times in the case law of the CJEU, and in some cases of the ECtHR where the case-law on detention to prevent unauthorized entry (Article 5 (1) (f)) seems to be rather controversial. What is important to note though is that the ‘non-entry’ fiction in conjunction with the absence of clarifying the reception conditions (Article 54 APR) applicable in border procedures may lead to increased and routinised detention practices in EU external states.

The issue of legal aid

The question of free legal assistance in border procedures has been another area of contention during the negotiations. While the European Parliament stressed its importance, the Member States were against expanding it to the first instance procedure due to financial and administrative constraints. A compromise solution was agreed offering free legal counseling for the administrative procedure (interview), excluding representation and allowing flexibility for Member States (Article 16 APR).

As outlined in the new APR (Article 16), legal counseling includes guidance and explanations of the administrative procedure, including information on rights and obligations during the process. Additionally, the legal counsellor will offer assistance with lodging the application as well as guidance on the different examination procedures and the reasons for their application e.g. admissibility rules or when someone is referred to accelerated or border procedures. However, this form of assistance does not extend to escorting individuals during the asylum interview, preparing them for the interview, or submitting legal memos at the first instance procedure.

In contrast, legal assistance and representation which is applicable in the appeal procedure (Article 17 APR) goes further, including the preparation of procedural documents and active participation in the hearing. Despite the supposed extension of legal aid, highlighted in a dedicated section (Section III), its provision remains in the form of counseling, marking a notable step back from the Parliament’s initial proposal. Furthermore, in practice, limited access both to counselling and legal assistance may occur due to the locations that border procedures take place such as detention or remote locations near the borders. This situation underscores potential challenges in ensuring effective legal support within the border procedures.Top of Form

The right to asylum and protection from refoulement

Other rights that may be undermined in the context of border procedures are the right to asylum and the protection from refoulement.  These rights may be compromised primarily due to the limited procedural safeguards applicable in border procedures, such as the very short time-limits (as stipulated in Article 51 APR, border procedure shall be as short as possible and a maximum of 12 weeks) combined with the limited access to legal assistance due to the locations where border procedures are taking place (detention or de facto detention) which may significantly impact the overall quality of the asylum procedure.

In addition, implementing border procedures to vulnerable applicants raises concerns that their special procedural needs may not be appropriately addressed. These individuals shall be provided with the necessary support to enable them to benefit from their rights. However, the notion of ‘necessary support’ yet remains undefined in the agreed text. It seems that it is mainly related to the special reception needs and the locations where the border procedures are implemented, assuming that border procedures are appropriate for applicants with special procedural needs unless ‘the necessary support cannot be provided in the locations referred to in Article 54’. Failure to provide special procedural guarantees to asylum seekers who require them directly impacts the quality and effectiveness of the asylum procedure.

Finally, the right to appeal is modified in the APR. According to Article 68 APR, the appeal will not have suspensive effect when the case is examined under border procedures. Some guarantees should nevertheless be preserved in this case, such as the possibility for the applicant to request a right to remain within a time-limit of at least 5 days and the provision of interpretation, information and free legal assistance (Article 68 (3) a (ii) in conjunction with Article 68 (5) APR). Even though it is positive to at least ensure that these guarantees are applicable in border procedures, the time-limit of 5 days to prepare and lodge an appeal and an application to request the right to remain may not be enough to ensure an effective remedy in practice.

Concluding Observations

The extensive regulation of border procedures in the final APR underscores their role as a crucial ‘migration management tool’. The persistence, during negotiations, to uphold border procedures at any cost resulted in intricate and complex provisions, emphasising their importance in ensuring responsibility of first-entry states. However, by containing asylum seekers at external borders, the EU risks exacerbating existing deficiencies, leading to overcrowd reception and detention centres and consequently violation of human rights. This directly impacts both asylum seekers, that will have to navigate asylum procedures with limited safeguards, and states grappling with overburdened capacities. As these rules take shape, a focus on rights-based interpretations and increased judicial oversight and monitoring are essential to safeguard the principles of fairness and respect for human rights at the borders.

1.        Introduction

In a recent Grand Chamber judgment, handed down on 29 July 2024, the ECJ made an important clarification of the right to equal treatment of third-country national long-term residents in the Member States. Long-term resident third-country nationals, who are generally excluded from the right to non-discrimination on the basis of nationality under Article 18 TFEU, nevertheless enjoy equal treatment with nationals when it comes to  access to social security, social assistance, and social protection under Article 11(1)(d) Directive 2003/109 (also known as the “Long-Term Residence Directive”). In Joined Cases C-112/22 and C-223/22 CU and ND, the Court has strengthened that right by confirming that it protects against both direct and indirect forms of discrimination. It held that imposing a residence condition on the access to the national basic income is a form of unlawful indirect discrimination. The judgment relies on the Court’s standing case law on similar questions previously raised in the field of free movement and Union citizenship law. In its outcome, the judgment thus represents a step closer to the aim expressed in the 1999 Tampere Conclusions and recital 2 to the preamble of Directive 2003/109 to create rights “as are as near as possible to those enjoyed by citizens of the European Union”.

2.        Facts

At issue in the preliminary reference before the Grand Chamber, was the Italian decreto-legge n. 4 “Disposizioni urgenti in materia di reddito di cittadinanza e pensioni”, as amended by Decree-Law 4/2019which provides for access to basic income. Beneficiaries of the basic income – Italian nationals, EU citizens, and long-term resident third-country nationals alike – were required to fulfil a residence condition: they must have been resident in Italy for at least ten years, with the last two years being consecutive (Article 2(1)).

CU and ND were the two defendants in the criminal proceedings that the Tribunale di Napoli referred to the Court of Justice. They had been accused of falsely declaring in 2020 that they fulfilled the residence conditions to receive the basic income. Both were long-term resident third-country nationals in Italy, having resided there since 2012 and 2013 respectively. The referring court wondered whether this residence condition put third-country nationals with the long-term resident status at a disadvantage and thus was incompatible with Article 11(1)(d) Directive 2003/109 and Article 34 CFREU. It further asked whether the condition can also be deemed compatible with the provisions related to EU citizens (i.e., Articles 18 and 45 TFEU and Article 7(2) Regulation No 492/2011). Finally, it asked whether the criminal sanctions applicable to anyone who falsely declares their compliance with the residence condition are compatible with EU law.

3.        Judgment

Whilst the referred questions concern different categories of persons who are potentially put at a disadvantage by the Italian law, the Court of Justice reformulated and narrowed down the questions. It held that it would only consider the compatibility of the Italian law with Article 11(1)(d) Directive 2003/109, read in light of Article 34 CFREU. This was because the defendants in the proceedings before the referring court were third-country nationals with a long-term residence status in Italy (paras 30-33). The issue of EU citizens resident in Italy was thus left aside in the judgment.

The Court confirmed that the Italian residence condition of ten years is an unlawful form of indirect discrimination which breaches EU law (para. 59). Furthermore, the Italian criminal penalties for a false declaration of compliance with such national residence conditions are also incompatible with EU law (para. 60).

In its judgment, the Court highlighted the significance of the long-term residence status as one that “corresponds to the highest level of integration for third-country nationals and justifies them being guaranteed equal treatment with nationals” (para. 46). The Court established that Article 11 prohibits both direct and indirect forms of discrimination which “ultimately have the same effect” (para 48). It held that the residence condition affects primarily non-nationals and thus constitutes indirect discrimination (para. 52). The Court rejected the justification brought forward by the Italian Government, providing that the basic income is made conditional on the participation in a special support programme which “involves a process of social and professional integration” (see para. 54). The Court found that Article 11 contains an exhaustive list of two derogations from the right to equal treatment: (1) where the applicant does not have their registered or usual place of residence in the Member State, and (2) for benefits that are not core benefits (see Article 11(2) and (4)). Any other derogation is therefore “in itself” incompatible with Article 11(1)(d) (para. 55). Furthermore, the Court explained that the conditions that a third-country national must fulfil under the Directive to obtain the long-term resident status – legal and continuous residence of five years in a Member State showing sufficient resources and health insurance – already demonstrates a sufficient level of integration to enjoy equal access to social benefits (paras 44 and 57). Member States may not unilaterally change those conditions – i.e., by extending the residence requirement from five to ten years as in the present case (para. 58).

4.        Comment

The Court’s judgment is an important affirmation of the right to equal treatment of long-term resident third-country nationals. It is inspired by its previous case law on free movement and Union citizenship. There, it has found that residence conditions, though not explicitly disadvantaging non-nationals, nonetheless predominantly exclude them, as such conditions can be more easily satisfied by nationals (see e.g. C-237/94 O’Flynn, para. 18). This is quite simply because, as the Court has previously explained, nationals more often than not reside in their Member State, whereas non-nationals more often reside outside of that Member State (see C‑73/08 Bressol and Others, para. 45). In paragraph 51 of the present judgment, the Court expressly cites C-20/12 Giersch and Others (commented on previously here), a case on the right to equal access to student benefits for children of frontier workers, to find in the present case that it does not matter that a residence condition may also apply and negatively affect certain nationals who have returned to the Member State after living abroad (para. 51). CU and ND can thus be read, in this regard, as a clear attempt of an approximation of the long-term residence status to the status of Union citizenship.

Notwithstanding this inspirational connection, the Court’s analysis of the justification brought forward by Italy highlights the self-standing nature of EU migration law instruments. Instead of applying its case law on indirect discrimination of EU citizens and their family members mutatis mutandis to long-term residents, the Court focused exclusively on the wording of the Long-Term Residence Directive to confirm that the instrument contains an exhaustive list of derogations that cannot be extended. On the one hand, this speaks to what has been termed an “administrative mindset” in the Court’s interpretation of EU migration law, i.e. an interpretation that focuses primarily on the wording and structure of the instrument at hand. On the other hand, it marks the departure from similar case law in the field of free movement.

As a reminder: the Court of Justice generally makes a distinction in free movement law between the justifications available in cases of direct and indirect discrimination. The Court is stricter in cases of direct discrimination, where Member States can only rely on the express derogations listed in relevant primary and/or secondary law (see e.g. C‑411/20 Familienkasse Niedersachsen-Bremen, para. 68). In cases of indirect discrimination, the Member State may also invoke other objective justifications (or mandatory requirements) which comply with the principle of proportionality (see e.g. C‑308/14 Commission v United Kingdom, paras 79-80). In the present case CU and ND, the Court seems to take the former approach despite establishing that the Italian law is indirectly discriminatory. In line with the finding of Advocate General Pikamäe in his Opinion (here, para. 45), the Court stated that “Article 11(2) of Directive 2003/109 provides an exhaustive list of situations in which Member States may derogate … Accordingly, outside those situations, a difference in treatment … is, in itself, an infringement of Article 11(1)(d)” (para. 55).

By adopting an interpretation that is closely focused on the wording of the Directive, the Court was able to forego an analysis of proportionality. Although, arguably, its analysis in paragraph 57, has a similar effect: the Court ultimately explains that extending the residence condition from five to ten years goes beyond what is necessary, as the EU legislator has already determined that five years of prior residence show that a person “has put down roots in the country”. Doctrinally, however, it is important to highlight that, following the Court’s interpretation in this case, any duration other than the legislatively determined five-year period would fail to meet the requirements of EU law and that any attempt of the Member States to refer to the principle of proportionality in this regard must be rejected.

The Court’s reasoning in this case equally allowed it to dispel the argument that the situation of nationals and long-term residents would be incomparable, as these categories of individuals would differ in their respective links with the Member State. As Advocate General Pikamäe had clarified (here, para. 48, with reference to C‑303/19 INPS, para. 34), this would negate the very premise upon which the equal treatment guarantees in the Long-Term Residence Directive are based. In adopting the Directive, and the equal treatment guarantees contained therein, the EU legislature took the view that the situation of Member State nationals and long-term residents should, by definition, be considered comparable for the purpose of assessing whether the latter may be discriminated against.

Lastly, the Court’s judgment addresses the question how far Member States may rely on criminal law instruments to sanction individuals who falsely claim entitlements derived from EU law. One should bear in mind that, in casu, the defendants in the main proceeding were faced with a severe custodial sentence. While this issue of enforcement principally falls into the sphere of Member States’ procedural autonomy, the Court used this judgment to remind Italian authorities of the “settled case-law” that criminal sanctions cannot be imposed where they stand accused of having violated a national rule that itself does not comply with EU law (para. 60, citing C-368/20 Landespolizeidirektion Steiermark, para. 97).

5.        Conclusion

In conclusion, this judgment represents a welcome development that effectively puts a halt to a policy that disenfranchised long-term residents by effectively stripping them of an equal treatment guarantee, and imposing heavy criminal sanctions on them for trying to rely on EU law to this end. The judgment illustrates that the Court of Justice often draws inspiration from its case law on free movement of EU citizenship. In this case, this inspirational link allowed the judges in Luxembourg to confirm that the equal treatment guarantees in the Long-Term Residence Directive also cover indirect discrimination. At the same time, the judgment is also illustrative of the limits of this inspirational link. By adopting an interpretation that closely probes the wording and structure of the Directive, the Court departs from its case law in the context of free movement and EU citizenship. Unlike indirectly discriminatory measures in the latter context, the Court refutes the notion that indirectly discriminatory measures may be justified safe in those constellations as spelled out in the Long-Term Residence Directive.

The European Commission has recently published an initiative that aims to regulate virtual worlds and Web 4.0 which is structured around the objectives of the Digital Decade policy programme. Virtual reality (VR) is a relatively old concept that was introduced primarily through gaming environments but given a new meaning through the introduction of the “Metaverse”. The Metaverse allows users to enter an immersive virtual reality that offers relaxation, education or an office environment. The wide variety of virtual realities that are part of the Metaverse brings expected use to new levels. It is estimated that, by 2026, 25% of the global population will spend at least one hour a day in the Metaverse for the purposes of either work, shopping, education or entertainment. Unlike current online stores or movie platforms, the Metaverse will provide a 3D immersive environment where users can interact with other users. Companies like Apple, Google, Roblox and Microsoft have made significant investments, with the total market size expected to hit 800 billion US dollars by 2030, potentially contributing 2.8% to global GDP in the tenth year after its creation.

The interaction with other users has been proven to produce positive, but also very negative virtual experiences, sometimes even amounting to virtual rape. Victims have stated that whilst this act was virtual, the emotional damage was physical. VR technology has improved since 1993 when the first virtual rape occurred. Its current state can be so realistic as to confuse the human body with reality, impacting both our conscious and subconscious emotional state. Immersive environments further have a significant impact on users’ vision of the world. For example, gamers who are continuously confronted with oversexualized female avatars in games are more likely to tolerate sexual harassment and to support the rape myth.

Regulating the Metaverse hence does not seem an unnecessary luxury. This post will argue that the current regulatory approach under the Digital Services Act is insufficient. Whilst new regulation is highly desirable, it should not extend to provide de facto statehood to Metaverse providers.

Regulatory choices in the EU

The European Commission is currently working on a new legislative proposal to regulate virtual realities. While the initiative is still in its infancy, it concretely puts forward four pillars. The most important from a regulatory perspective is the third pillar: government. The Commission is not clear in how it intends to regulate the virtual worlds, but it refers to the applicability of the Digital Services Act (DSA). The DSA’s approach is primarily focused on the transparency of the terms & conditions and complaint procedures, but it does not regulate content. It determines applicability of fundamental rights (see e.g. Art. 1(1)) but fails to provide concrete elaboration. It further considers that content flagged as ‘illegal’ should be appropriately taken care of, but only refers to Union law and national law of Member States for the exact definition of what exactly constitutes ‘illegal content’ (see e.g. Arts. 16 and Art. 3(h)). Harmful content is furthermore excluded from this regime.

The counter-model to the DSA’s regulatory approach, so far not considered by the Commission in its Initiative, would be an emphasis on content regulation, whereby providers have to allow all speech without discrimination. Speech could only be limited when it is prohibited by law. This type of approach severely limits the freedom to conduct a business (Art. 16 CFREU) as all virtual realities are de facto regulated as public spaces. Nevertheless, this approach is considered to contribute to a safe digital environment. It would, however, entail assigning legal duties and limits on private legal persons that closely resemble those of a State. A legal person would have to monitor and effectively enforce the fundamental rights of its users. In this monitoring, the provider arguably becomes an extension of the State’s police. Similarly, virtual worlds can install their own dispute resolution proceedings. Increasing regulatory responsibilities for the Metaverse providers could reach a point where they are de facto mini-States. Whilst this approach may increase digital safety it raises the question of whether we could and should think of virtual realities as the new State?

Human rights and the Metaverse

Earlier generations of the internet were expected to produce substantial societal benefits by facilitating more efficient communication infrastructures. However, the destructive force of the internet has arguably turned out greater than initially anticipated with its ability to foster strong polarization, spread misinformation and reinforce pre-existing patterns of oppression. An example of the latter can be found on Facebook, with the platform notoriously punishing black women’s comments speaking out against racism and sexism. In fact, Facebook’s algorithms have targeted hate speech directed at white persons disproportionately compared to hate speech directed at any other societal group. Platform policies seeking to protect marginalized communities hence actually reinforce marginalization. Algorithms further generally consider the white male as the default, which resurfaced when Amazon had to discontinue using an AI hiring tool which rendered resumes containing variations of the word “women’s” as less desirable.

With further development of newer generations of the internet facilitating the development of entirely virtual spaces, the foregoing issues will aggravate exponentially if left regulated insufficiently or incorrectly. In fact, it has already been established that users of existing virtual spaces struggle with reporting mechanisms. Users describe that it is often difficult to identify the speaker, that usernames are not easily traceable and that it is relatively difficult for a new user to figure out how to report harassment. The definition of “online harassment” is further highly subjective. Harassment within a virtual space is experienced much more intensely by some identities than others and besides, full embodiment and presence within a virtual space facilitate a far more intense experience. It logically follows that users choose to customize their avatar in a way that reflects an identity that is subjected to the least amount of harassment, rather than have their avatar reflect their own physical identity. As a person of colour has pointed out: “Since I can choose to get treated like a black person or not get treated like a black person—I’m probably going to choose not to get treated like a black person”.

Where one identity is deemed more “favourable” than the other, it logically follows that Metaverse spaces risk being overrepresented by identities rendered more “favourable” compared to others. Not only does this inherently communicate a narrative of desirability, it also projects a remarkably one-sided view of the world. Such a one-sided projection of reality unarguably runs the risk of seriously enhancing existing patterns of oppression towards minority groups both virtually and physically.

Human rights obligations of States vs companies

The modern conceptualization of Statehood is defined by the Westphalian system, identifying State sovereignty and the principle of territorial integrity as the foundations for the international legal system since 1648. Consequently, international human rights law is traditionally premised on the assumption that the sovereign State as the quintessential bearer of international obligations is responsible for the protection of fundamental rights within its territory. This logic firstly insinuates a hierarchy between the “oppressive” sovereign on the one hand and the citizen requiring protection from this oppression on the other. Secondly, this Westphalian logic is premised on the notion that the sovereign State is the exclusive actor within a legal system that is capable of wielding oppressive power against an individual.

Crucially, corporations are not, or at least not directly, subjected to international human rights obligations as it is the State that is burdened with this responsibility. Currently, companies merely face the moral responsibility to conduct a process of assessing, preventing and mitigating existing and potential adverse human rights impacts of operations across their supply chain. However, this process of human rights due diligence is derived from a soft law mechanism which does not produce legally binding obligations. Whilst the EU legislator has recently adopted a legally binding framework, emphasis remains on the avoidance of contribution to human rights violations rather than a responsibility to actively safeguard human rights protection across business operations.

The oppressive corporation

The traditional idea of the State monopoly on power and coercion has been proven to hold less relevance for today’s realities, with surveillance tasks increasingly becoming fragmented across various public and private actors. In fact, the idea of assigning State-like regulatory duties to private companies is far from modern, with former colonial companies like the Dutch and English East and West India companies being granted sovereign powers ranging from the right to form colonies to the right to use force. Interpreting the concept of ‘power’ in a broader sense, namely the ability to create or destroy wealth within a system, it follows that this trend undeniably mirrors today’s realities, with corporations representing 69 out of the top 100 largest economic entities globally in 2015.

With citizens increasingly practicing their daily needs and responsibilities in the Metaverse, the question to what extent this virtual world then factually still differs from life in a nation State is not far-fetched. Metaverse operators, predominantly represented by white or Asian non-queer men, can decide who gets to enter their virtual space and what type of behavior is deemed desirable. While the DSA mentions the applicability of fundamental rights to the regulation of online platforms, it is still questionable how this precisely plays out in practice. For example, the question arises whether operators can exclude certain identities from their virtual space without a valid cause. Upon entry, a user is obliged to accept the rules and guidelines of the platform. If the user disagrees, it is still uncertain to what extent these guidelines could effectively be challenged in a court. Users are left with the option of either agreeing and signing away their rights or disagreeing with subsequent exclusion from the platform. Such corporate policies are therefore capable of imposing restrictions on the user’s fundamental rights protection that undeniably resemble the intrusive character of regulatory decisions taken by the nation State.

Corporate sovereignty?

Accordingly, the corporate creator of the virtual space increasingly assumes the factual position of a regulatory actor with consequences that reach considerably further than previously seen. It takes on an authoritative role that inherently insinuates a hierarchy towards its users which mirrors the hierarchical position of the State against its citizens. Mark Zuckerberg has already indicated that he considers Facebook as a government with the policies it is developing and the number of users it has gathered. The company even announced the introduction of its own digital currency: the Libra.

Apart from a government, a recognized State under international law possesses a permanent population, a defined territory and the capacity to enter into relations with other States. The population of a Metaverse consists of its users, with the distinct virtual space providing for a defined territory these users can inhabit. Some argue that the sovereignty of the company is based on data rather than territory, rendering the boundaries of this sovereignty rather fluid. Metaverse companies could further enter into agreements of interoperability with other companies which determine the conditions based on which users and their data could ‘travel’ from one virtual space to the other. Yet, the extent to which these criteria apply to companies remains highly debatable. Indeed, corporate actors are not authorized to exercise physical coercion against citizens or collect taxes. While the latter issue could reasonably be refuted by the argument that the collection of data largely equates to the collection of taxes due to their monetizable character, or by selling data storage plans based on the amount of virtual goods a user wishes to store, the argument remains that corporate sovereignty inherently takes on a different form than State sovereignty. This becomes more apparent when considering that States and companies inherently project different narratives onto their target audience, with the former employing a vocabulary of citizenry while the latter considers its subordinates as ‘customers’ with the subsequent prioritization of commodification over human autonomy.

Nevertheless, the foregoing proves that Metaverse operators are factually exercising regulatory actions that mirror those of a State. Scholars draw an analogy with the financial principle of ‘same activity, same regulation’, prioritizing a logic of assigning regulatory duties based on an actor’s conduct rather than their status. In the context of a Metaverse, the overwhelming majority of power and factual control over the virtual space is likely assigned to one or a few dominant actors. Evidently, the extent to which the sovereign State can then still exercise factual control over this space that is entirely detached from State borders is severely limited. Subsequently, the ability of the regulatory approach taken under the DSA to effectively regulate such Metaverse spaces is highly questionable.

Conclusion

The development of Metaverse spaces undeniably creates promising societal benefits. Yet, as seen with the regulation of Web 2.0, the stakes for the Commission’s web 4.0 initiative are exceptionally high. It is crucial to be ahead of the developments in order to prevent power balances between States and private corporations to shift drastically. If the issue of human rights protection remains to be overlooked by the initiative, the possibility of an all-powerful Metaverse operator arising, or possibly even a “Virtual Wild West”, becomes increasingly realistic. While legislative efforts provide for promising frameworks, further elaboration on human rights duties of companies is crucial to facilitate a responsible transition into the virtual space. While it is largely undisputable that rendering Metaverse platforms as entirely sovereign States is rather undesirable and unrealistic, it is quintessential to assign responsibilities that mirror the factual position and regulatory actions of operators. Yet, the EU legislator will have no easy task in determining to what extent such duties should be assigned upon providers and what form these duties should have.

The state of media pluralism around the world stands at one of its most transformative points in modern history. The development of new technologies and the impact of social media platforms have radically reshaped society. Governments around the world have responded in kind. According to Freedom House, governments have shifted from open, laissez-faire internet exchange to ‘greater government intervention in the digital sphere.’ In 2023, global internet freedom had declined for the 13^th consecutive year. Many point to the European Union as a bastion for ‘third way’ media co-regulation—balancing China’s authoritarian grip on expression and the United States’ unrestricted accommodations for free speech. Whereas one might view the European Union as a leader in media pluralism with appropriate safeguards for personal privacy, several Member State national governments stand in direct violation of such values. By April 2024, the Liberties Media Freedom Report declared that media freedom and pluralism stand ‘perilously close to the breaking point’ within the European Union. The European Union has produced legislation—specifically the General Data Protection Regulation (GDPR), the Digital Services Act (DSA), and the European Media Freedom Act (EMFA)—to try to address degrading media freedom within the EU community. This article examines how said legislation—specifically the EMFA—does not sufficiently secure media pluralism guarantees in two Member State case studies, Hungarian public media and Italian private media. With the European Union historically perceived as a ‘beacon of openness and liberal democracy,’ Member State derogations from media pluralism present hypocritical complicating factors for such international standards of liberal democratic governance.

Codifying EU Media Law

As enshrined in EU law, media pluralism and media freedom stand as one of the EU’s core principles and as a fundamental right for all EU citizens. Importantly, Article 11 of the EU Charter of Fundamental Rights states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

To this end, three major media protection packages have made their debut on the EU institutional stage. Implemented in 2018, the EU General Data Protection Regulation (GDPR) Regulation (EU) 2016/679 serves as unparalleled ‘third-way’ legislation intended to protect the personal data of EU citizens while still bolstering necessary information-related services such as journalistic free expression via Article 85. The Digital Services Act (DSA) Regulation (EU) 2022/2065represents a novel avenue for confronting levels of hate speech, terrorist propaganda, and disinformation that have plagued major social media platforms in recent years; the DSA would require tech companies to enact policies aggressively combating illicit content or face billions of euros in fines. And most recently, in 2024, the European Media Freedom Act (EMFA) Regulation (EU) 2024/1083 formulates strict protections for journalistic practices and seeks transparency in public media funding and editorial independence.

Such legislation from the EU institutions display a concerted effort to preserve media freedom at the supranational level. However, such practices do not reflect the ‘on-the-ground’ situation at the Member State level nor will these laws serve as a panacea for long-standing, entrenched, and anti-competitive media freedom violations in various EU Member States. Two Member State case studies—Hungary and Italy—expose the gaps in the attempted remedies of these media packages, specifically the EMFA. To date, the EMFA represents the European Union’s foremost legislation on ensuring the integrity, independence, and durability of media freedom and media organizations. While the EMFA provisions would work to create a comprehensive future framework for media operations in a theoretical silo, this legislation arrives too late given the current state of affairs within the EU. As such, this piece will examine the disconnect between several of the more apparently robust Articles of the EMFA—Articles 4, 5, 6, 8-13, 22, and 25—and the media freedom environments in Hungarian public media and Italian private media. Whereas these measures might serve generally as substantive approaches to the reinforcement of media pluralism, they ultimately fail to address the deeply rooted and anti-competitve nature of leading Hungarian and Italian media organs.

Exerting Control over Hungarian Public Media

Hungary’s ruling Fidesz Party has openly and legally curtailed independent media since 2010 with an illiberal structure that will persist despite the aforementioned EU legislation. The illiberal structure’s public media constriction in Hungary functions through entirely legal and open parliamentary procedures to control and restrict media content. In 2011, Fidesz established the Media Authority and Media Council in Cardinal Act CLXXXV and CIV. The Media Authority serves as an umbrella media regulatory commission made up of three central branches: the President, the Media Council, and the Office of the Media Council. The media laws require official registration with the Media Authority before commencing media services, stipulate morality clauses and unbiased content, impose sanctions upwards of €720,000, and consolidateall public broadcasting and advertising under one organization—the Media Services and Support Trust Fund (MTVA). As the Council of Europe noted, the President of the Media Authority ‘holds extensive and concentrated powers for nine years over all regulatory, senior staffing, financing and content matters across all media sectors.’ Despite the EMFA’s proposed intention of ‘avoid[ing] the risk of… undue political influence on the media,’ [EMFA Recital 73 of the Preamble] the Regulation will not effect any material change in this highly concentrated, ruling-party aligned state organization.

Technically, the appointment process of the President of the Media Authority entirely aligns with Article 5(2) EMFA requiring ‘transparent and non-discriminatory procedures’ for appointments to management boards of public media service providers. The Hungarian government points to the fact that a constitutionally-codified confirmation vote of a two-thirds majority in Parliament would attribute popular, universal consensus to Media Authority appointees. However, these claims only provide a rhetorical veneer of nonpartisan composition. A gerrymandered two-thirds parliamentary Fidesz supermajority accommodates a streamlined confirmation process for pro-Fidesz political appointees. As such, the Media Authority regulatory commission is singularly composed of allies of the Hungarian ruling party who cannot—nor would not—be recalled from their positions—another point of alignment with Article 5(2) EMFA. The first President of the Media Authority, Annamária Szalai, was a Fidesz MP. The second President—Mónika Karas—served as the defense attorney for two Fidesz-aligned media outlets. The third and current President—András Koltay—has carried a lead position in Mathias Corvinus Collegium, the Fidesz-affiliated think tank and educational institution.

With the European Union attempting to outline some basic standards for media pluralism, many of their responses have come far too delayed, particularly in the Hungarian case. In assessing the novel EU legal mechanisms for media pluralism, one does not see possible redress from the European supranational level. While the EMFA seeks transparency in appointment processes, it does not carry any mechanism for fully ensuring nonpartisan government-appointees in regulatory bodies—nor could it given appointees are determined at the Member State level. One study found that by 2017, nearly 90% of all Hungarian media was already ‘directly or indirectly controlled by Fidesz.’ At the Prague European Summit 2024, European Commissioner for Values and Transparency Věra Jourová indicated that while the EMFA makes significant strides for establishing protections of editorial independence in public media and media ownership transparency, Hungarian media state capture is ultimately at the whim of the national government and fundamentally irreversible from the European level. Commissioner Jourová is correct in this assessment particularly given that much of the EMFA approaches media institutions with a ‘freedom from interference’ negative liberty approach [EMFA Recitals 15, 18 and 19].

The well-entrenched, intricate, and legalistic implementation of the Hungarian Media Authority will continue unaffected by the EMFA. Article 4(2) EMFA outlines the need for Member State self-restraint in intervening in editorial decisions in media organs and regulatory authorities to preserve editorial independence. This guideline falls entirely flat à la hongrois; the now-purged editorial boards of Hungarian media providers are composed of decision-makers who voluntarily align with the government position. As previously mentioned, Article 5(2) EMFA mandates transparent, open, and non-discriminatory appointment processes for the heads of public media providers. The procedure for appointing a new President of the Media Authority is entirely transparent and outlined in Hungarian law; however, the appointee him or herself has consistently come from a pro-Fidesz background in the media. Articles 8-13 EMFA shape the role of the newly-established European Board for Media Services. While an entirely respectable mandate, the Board however would be composed of respective Member State national regulatory authorities, effectively legitimizing the Hungarian Media Authority in European-level decision-making. Finally, Article 6(1) EMFA seeks to clarify and publicize the ownership structure of private media. In Hungary, it is not unknown that close Orbán allies Andrew Vajna owns TV 2—the most-watched television channel in Hungary in 2022—and Lőrinc Mészáros owns Hungary’s largest print media company, Mediaworks. Their outsized power over private media will not change with simple audience knowledge of the ownership of these companies. Already as of 2020, 74% of Hungarian voters believed that Hungarian media has a strong political bias and 66% believed it was ‘disconcerting that the media are increasingly concentrated in Fidesz’s hands.’ Even with the changes of the EMFA entering into force on 8 August 2025, Hungarian state capture of media capably evades EU media pluralism guarantees.

Establishing Conflicts of Interest in Italian Private Media

To turn to the Italian case as it pertains to the EMFA, the concern over privately-owned, party-affiliated media dominating the advertising markets prompts major conflict of interest considerations. A number of party-aligned television channels controlled by one individual have dominated the media advertising market share in Italy over the past three decades—former Prime Minister Silvio Berlusconi and his Mediaset conglomerate. The top six most-viewed television channels from 2008 to 2017 divided across the state-run RAI and private Mediaset company—with RAI channels maintaining a plurality of viewers. However, because of legal limits on advertising spend in public channels, Mediaset has consistently captured disproportionate advertising market share. For example, in 2009, RAI and Mediaset respectively maintained 39.2% and 38.8% of the total television audience, but Mediaset held 63.7% of advertising spend to RAI’s 25.5% the same year. European Commissioner for Values and Transparency Věra Jourová noted at the Prague European Summit 2024 that one of the EMFA’s goals is to establish transparency concerning party-affiliated media channels and to promote fair competition in the media markets. And yet the problem arises in the Italian case where a private, partisan media outlet already controls a dominate market share and the EMFA regulatory efforts are only specific to public advertising spend.

The effort to assess fair competition in media markets manifests in Article 22 EMFA, and transparent public spending on media platforms is codified in Article 25 EMFA. Article 22 EMFA establishes a reporting mechanism regarding media market concentrations. Article 25 EMFA seeks proportionate, transparent, and objective measures for determing public-advertising spend on media platforms. With Article 22 EMFA, it is difficult to see a ‘through-line’ between a report on highly-concentrated media outlets and the actual remediation of said monopolizing force. Article 25 EMFA would successfully combat arbitrary Member State funding for a media company which might result in illegitimately awarded public monies. But while this provision would stimy willful ruling-party media clientelism, it is unable to address private advertising spend, which can serve as a source of indirect conflict of interest lobbying. In the Berlusconi case where he actually owned the media outlets, one study found that firms shifted their allocated advertising spend to Mediaset during Berlusconi’s respective tenures as Prime Minister boosting Mediaset profits by 25% through his years as Prime Minister. Mediaset’s growth in advertising market share between 1993 and 2011 was marked by major increases at the start of his third and fourth governments. While Mediaset saw a 25% increase in profits during the period of various Berlusconi governments from 1994 to 2011, RAI’s profits decreased by 9% despite viewership remaining relatively consistent. The EMFA provisions do not provide any recourse for addressing such conflicts of interest or monopolizing tendencies in privately-owned media companies and resultant discretionary firm-by-firm advertising spend. And with Mediaset functioning from a majority position in the media advertising market—the company managed on average 55% of television advertising revenue from 2019 to 2022—the possibility of retrofitting fair competition procedures is unlikely. As such, Article 22 EMFA’s competition guidelines are toothless and Article 25 EMFA is too narrowly tailored in the Italian case, considering the reality that Berlusconi’s Mediaset already controls both a strong television viewership and an even stronger advertising stake. While the proportionality and transparency measures are respectable from behind a ‘veil of ignorance,’ the Berlusconi media empire has already positioned itself as the controlling stake in advertising revenue, and private firms can continue to operate via indirect conflict of interest lobbying beyond the confines of EMFA regulation.

Concluding Comments

The reality is that changes in the media landscape take place at the national level; the EU’s EMFA regulation can only do so much to secure Member State-specific media pluralism—particularly if editorial offices and ownership structures for these media organs have already been usurped. Even more concerning is the fact that these methods for state or partisan capture of media outlets serve as entirely replicable models for other nations—carrying grave connotations for the future of liberal democratic governance in constitutional democracies in the EU and around the world. In Hungary, Orbán’s efforts to control independent media and propagate his political agenda have irreversibly violated principles of media pluralism which—as the European Court of Human Rights once noted—stands as the ‘cornerstone of [a] democratic and pluralist society’ (Manole and Others v. Moldova, para 54). In Italy, Berlusconi’s media congolmerate Mediaset found avenues to solidify advertising control and financially benefit from firm advertising spend during his time as Prime Minister. While the EMFA prompts some important regulatory changes for the future state of media pluralism, it falls short of fully addressing the current state of Hungarian public media and Italian private media ecosystems. Such a topic provides context to the worldwide retreat of media pluralism, internet freedom, and free speech in liberal democratic societies; the backsliding of media pluralism—and liberal democratic principles writ large—is not confined to strictly authoritarian regimes but instead osmotically permeates throughout previously entrenched liberal democracies.

After years of anticipation, the final text of the Artificial Intelligence Act (‘the Act’) was approved by the Council on May 21^st of this year. The landmark regulation, first of its kind, positions the EU at the forefront of the global effort to establish a comprehensive legal framework on artificial intelligence. The Act aims to safeguard fundamental rights and promoting the development of safe and trustworthy AI by adopting a risk-based approach, mandating stricter scrutiny for higher-risk applications. At the highest level of risk, the Act contains a list of “prohibited uses” of artificial intelligence (Article 5) due to their potentially detrimental consequences for fundamental rights and Union values, including human dignity, freedom, and equality (see Recital 28). While the Act prohibits the use of specific instances of AI predictive policing, we should seriously consider whether the ban will have meaningful effects in practice, or may become a mere instrument of symbolic politics. Leaning towards the latter, this blog cautiously implies that this concern reflects broader questions about the Act’s commitment to developing “human-centric” AI and whether it effectively encompasses all individuals within its protective scope.

Predictive policing is not defined in the Act, but a leading definition provided by Perry et. al, is ‘the use of analytical techniques to identify promising targets’ to forecast criminal activity. As highlighted by Litska Strikwerda (Dutch only), this may involve identifying potential crime locations (predictive mapping), as well as assessing the likelihood that an individual will either become a victim of a crime or commit a crime (predictive identification). While predictive identification has significant potential as a crime prevention tool, it has faced substantial criticism, particularly concerning potential human rights implications. For example, the extensive data collection and processing involved in predictive identification raise serious concerns about data protection and privacy, including the correct legal basis for such data processing and the potential intrusion into individuals’ private lives. Additionally, the discriminatory nature of algorithmscan exacerbate existing structural injustices and biases within the criminal justice system. Another issue is the presumption of innocence, given that predictive identification approaches criminality from an almost entirely opposite perspective, labelling individuals as potential criminals before they have engaged in any criminal conduct. Recital 42 of the Act cites this concern in justifying the prohibition on AI based predictive identification.

Initially classified as a high-risk application of artificial intelligence under the Commission’s proposal, predictive identification is now designated as a prohibited use of artificial intelligence under Article 5(1)(d) of the Act. This post seeks to demonstrate the potential limitations of the ban’s effectiveness through a critical analysis of this provision. After providing a brief background on the ban, including the substantive lobbying by various human rights organisations after earlier versions of the Act failed to include predictive identification as a prohibited use, the provision and its implications will be analysed in depth. First, this post points out the potential for a “human in the loop” workaround due to the prohibition’s reference to “profiling”. Secondly, it will discuss how the Act’s general exemption clause for national security purposes contributes to a further weakening of the ban’s effectiveness.

The Ban in the Act

The practice of predictive identification has been under scrutiny for years before the final adoption of the AI Act. For example, following the experiments of “living labs” in the Netherlands, Amnesty International published an extensive report on the human rights consequences of predictive policing. The report highlights one experiment in particular, namely the “Sensing Project”, which involved collecting data about bypassing cars (such as license plate numbers and brands) to predict the occurrence of petty crimes such as pickpocketing and shoplifting. The idea was that certain indicators, such as the type of car, could help identify potential suspects. However, the system disproportionately targeted cars with Eastern European number plates, assigning them a higher risk-score. This bias highlights the potentially discriminatory effects of predictive identification. Earlier that same year (2020), a Dutch lower court ruled that the fraud detection tool SyRI violated the right to private life under the ECHR, as it failed to fulfil the “necessary in a democratic society”-condition under Article 8(2) ECHR. This tool, which used “foreign names” and “dual nationality” as possible risk-indicators, was a key element in the notorious child benefits scandal in the Netherlands.

Despite widespread concerns, a ban on predictive policing was not included in the Commission’s initial proposal of the Act. Shortly after the publication of the proposal, several human rights organizations, including Fair Trials, started intensive lobbying for a ban on predictive identification to be included in the Act. Subsequently, the IMCO-LIBE reportrecommended prohibiting predictive identification under Article 5 of the Act, citing its potential to violate the presumption of innocence, human dignity, and its discriminatory potential. Lobbying efforts continued vigorously throughout the negotiations (see this signed statement of 100+ human rights organizations).

Eventually, the clause was incorporated in the Parliament’s resolution and is now part of the final version of the Act, reading as follows:

[ The following AI practices shall be prohibited: ] the placing on the market, the putting into service for this specific purpose, or the use of an AI system(s) for making risk assessments of natural persons in order to assess or predict the likelihood of a natural person committing a criminal offence, based solely on the profiling of a natural person or on assessing their personality traits and characteristics. [ … ] This prohibition shall not apply to AI systems used to support the human assessment of the involvement of a person in a criminal activity, which is already based on objective and verifiable facts directly linked to a criminal activity. (Article 5(1)(d)).

The ”Human in the Loop” Problem

The prohibition applies to instances of predictive identification based solely on profiling, or on the assessment of a natural person’s personality traits and/or characteristics. The specifics of these terms are unclear. For the definition of “profiling”, the Act (Article 3(52)) refers to the definition given in the GDPR, which defines it as any automated processing of personal data to evaluate personal aspects relating to a natural person (Article 4(4) GDPR).

The first question that arises here relates to the difference between profiling and the assessment of personality traits and characteristics. Inger Marie Sunde has highlighted this ambiguity, noting that profiling inherently involves evaluating personal characteristics. A difference between “profiling” and “assessing” may lie in the degree of human involvement. While profiling implies an (almost) entirely automated process with no meaningful human intervention, there is no clear indication on the level of human involvement required for “assessing”.

A deeper concern lies in the question as to what should be understood by “automated processing”. The test for a decision to qualify as solely-automated, including profiling, is that there has been no meaningful human interventionin the decision-making process. However, the exact meaning of “meaningful” here has not been spelled out. For example, the CJEU in the SCHUFA Holding case confirmed automated credit scoring to be a solely automated decision (in the context of Article 22 GDPR), but did not elaborate on the details. While it is clear that the human role should be active and real, not symbolic and marginal (e.g. pressing a button), a large grey area remains (for more, see also here). In the context of predictive identification, this creates uncertainty as to the extent of the human involvement required, opening the door for a potential “human in the loop”- defense. Law enforcement authorities could potentially circumvent the ban on predictive identification by demonstrating “meaningful” human involvement in the decision-making process. This problem is further aggravated by the lack of a clear threshold for the definition of “meaningful” in this context.

The second paragraph of the prohibition on predictive identification in the Act states that the prohibition does not apply to AI systems supporting human assessment of criminal involvement, provided this is based on “objective and verifiable facts directly linked to a criminal activity”. This could be understood as an instance of predictive identification where the human involvement is sufficiently “meaningful”. Nevertheless, there is room for improvement in terms of clarity. Additionally, this conception of predictive identification does not reflect its default operational mode – where AI generates predictions first, followed by human review or verification – but rather the opposite scenario.

In the event that an instance of predictive identification does not fit the definition of a prohibited use, this does not result in the entire practice being effectively free from restrictions. Other instances of predictive identification, not involving profiling or the assessment of an individual’s personality traits, may be classified as “high-risk” applications under the Act (See Article 6 in conjunction with Annex III 6(d)). This distinction between prohibited and high-risk practices may hinge on whether the AI system operates solely automatically, or includes meaningful human input. If the threshold for meaningful human intervention is not clearly defined, there is a risk that predictive identification systems with a degree of human involvement just beyond being “marginal and symbolic” might be classified as high-risk rather than prohibited. This is significant, as high-risk systems are simply subject to certain strict safety and transparency rules, rather than being outright prohibited.

In this regard, another issue that should be considered is the requirement of human-oversight. According to Article 14 of the Act, high-risk applications of AI should be subject to “human-oversight” to guarantee their safe use, ensuring that such systems are used responsibly and ethically. However, as is the case with the requirement of “meaningful human intervention”, the exact meaning of “human oversight” is also unclear (as explained thoroughly in an article by Johann Laux). As a consequence, even in instances where predictive identification does not classify as a prohibited use under Article 5(1)(d) of the Act, but is considered high-risk instead, uncertainty about the degree of human involvement required remains.

Finally, it should be noted that even if the AI would only have a complementary task compared to the human, another problem exists. It pertains to the potential biases of the actual “human in the loop”. Recent studies suggest humans are more likely to agree with AI outcomes that align with their personal predispositions. This is a problem distinct from the inherent biases present in predictive identification systems (as demonstrated by, for example, the aforementioned cases of the “Sensing Project” and the Dutch childcare benefits scandal). Indeed, even the human in the loop “safeguard” may not offer requisite counter-balance to the use of predictive identification systems.

General clause on national security purposes

Further, the Act includes a general exemption for AI systems used for national security purposes. As national security is beyond the EU’s competences (Article 4(2) TEU), the Act does not apply to potential uses of AI in the context of the national security of the Member States (Article 2 of the Act). It is uncertain to what extent this exception may influence the ban on predictive identification. National security purposes are not uniformly understood, although established case law has confirmed several instances, such as espionage and (incitement to- and approval of) terrorism to be included within its meaning (see this report by the FRA). Yet, given the degree of discretion granted to the Member States in this area, it is uncertain which instances of predictive identification might be excluded from the Act’s application.

Several NGOs focusing on human rights (particularly in the digital realm) have raised concerns about this potential loophole, arguing that the exemption under the Act is broader than permitted under European law. Article 19, an advocacy group for freedom of speech and information, has argued that such a broad exemption contradicts European law, stating that ‘the adopted text makes the national security a largely digital rights-free zone’. Similar concerns have been raised by Access Now. The fear is that Member States might invoke the national security exemption to justify the use of predictive identification techniques under the guise of safeguarding national security. This could undermine the effectiveness of the ban in practice, allowing for the continued use of such technologies despite their potential to infringe upon fundamental rights. For example, the use of predictive policing in counter-terrorism efforts could disproportionately target minority communities and individuals from non-Western backgrounds. Combined with the existing concerns about biases and the potential for discriminatory outcomes in the context of predictive identification, this is a serious ground for concern.

Rather than a blanket exemption, national security considerations should be addressed on a case-by-case basis. This approach finds support in the case law of the ECJ, including its ruling in La Quadrature du Net, where it reiterated that the exemption is not by definition synonymous with the absolute non-applicability of European law.

Conclusion

While at first sight the ban on predictive identification appears like a significant win for fundamental rights, its effectiveness is notably weakened by the potential for a “human in the loop”-defence and the national security exemption. The human in the loop-defence may allow law enforcement authorities to engage in predictive identification if they assert human involvement, and the lack of a clear definition for “meaningful human intervention” limits the provision’s impact. Additionally, the exemption for AI systems offering mere assistance to human decision-making still allows for human biases to influence outcomes, and the lack of clarity regarding the standards for “human oversight” for high-risk applications are not promising either. The national security exemption further undermines the ban’s effectiveness. Given the broad and ambiguous nature of the exemption, there is significant scope for Member States to invoke this exemption.

Combined, these loopholes risk reducing the ban on predictive policing to a symbolic gesture rather than a substantial protection of fundamental rights. In addition to the well-documented downsides of predictive identification, there is an inherent tension between these limitations in the ban, and the overarching goals of the AI Act, including its commitment to safeguard humanity and develop AI that benefits everyone (see for example Recitals 1 and 27 of the Act). Predictive identification may aim to enhance safety by mitigating the threat of potential crime, but it may very well fail to benefit those already marginalised, for example minority communities and individuals from non-Western backgrounds, who are at higher risk of being unfairly targeted, for example under the guise of counter-terrorism efforts. Addressing these issues requires clearer definitions, stricter guidelines on human involvement, and a nuanced approach to national security exceptions. Without such changes, the current ban on this instance of predictive policing risks becoming merely symbolic: a paper tiger failing to confront the real challenges and potential harms of the use of AI in law enforcement.