Challenges of a Digital Single Market from an Austrian perspective – towards Smart Regulations

This paper discusses various legal challenges of the “digitisation of the singlemarket”. The question arises to which extent the current regulatory framework appearssuitable to deal with the presented challenges of digitisation and where additionalregulation is required. In the field of autonomous decision-making by AI, we identified themost pressing need for new regulation. While the EU (and increasingly Austria, as well) isaware of this need, regulation to date remains scarce. Though the EU legislator has alreadytaken specific precautions for the use of algorithms in the GDPR, such regulatoryapproaches are missing in most other fields of law. In contrast to this, antitrust law andproduct liability law already appear to be well suited to meet the challenges posed bydigitisation. This is especially true for product liability law, which is in principle apt to coverthe specific challenges of the convergence of software and hardware in smart products.However, uncertainty about its applicability to incorporeal goods would make clarificationof current product liability legislation advisable – a view shared by the EuropeanCommission. Two more fields very recently received some legislative attention due to thechanging needs of a digital society: the postal sector on the one hand, and e-governmenton the other hand. In both fields, new legislation – tellingly in the form of (partially) directlyapplicable regulations – has recently been passed by the EU – a sharp contrast to the caseof self-learning AI. However, while the integration of the new regulation on cross-borderparcel delivery will probably not pose major challenges for domestic markets, theimplementation of the Single Digital Gateway will raise serious organisational and legalchallenges for national administrations (especially when taking into account the limitedsuccess of the previous related initiative on the points of single contact under the ServicesDirective).