EU By-Design Regulation in the Algorithmic Society

Algorithmic decision-making fundamentally challenges legislators and regulators to find new ways to ensure algorithmic operators and controllers comply with the law. The European Union (EU) legal order is no stranger to those challenges, as selflearning algorithms continue to develop at an unprecedented pace.One of the ways to cope with the rise of automated and self-learning algorithmic decision-making has been the introduction of by-design obligations. By-design regulation refers to the array of regulatory strategies aimed at incorporating legal requirements into algorithmic design specifications. Those specifications would have to be programmed/coded into existing or newly developed algorithms. That may be a necessity, as the European Commission in its February 2020 White Paper on Artificial Intelligence recognised the insufficiency of existing EU legislation on product safety and the protection of fundamental rights in that context. Against that background, different open questions remain as to the modalities of this kind of regulation, ranging from who is competent to how to ensure compliance with those specifications. Those obligations demand economic operators to program their algorithms in such a way as to comply with legal norms. Related to existing coregulation initiatives, by-design obligations present a new and potentially powerful