Between Regulatory Fixity and Flexibility in the EU AI Act

The EU AI Act aims to regulate artificial intelligence (AI) in a way that balances innovation and protection from harms, but faces the challenge of keeping pace with the fast and dynamic development of AI. This paper examines the tension between fixity and flexibility when regulating emerging technologies, drawing on literature on the so-called pacing problem, contrasted by sociolegal theory on the importance of predictability and legal certainty, as a basis to address recent changes in the regulatory AI landscape. Specifically, it analyses how the EU AI Act employs various mechanisms of flexibility, such as i) voluntary measures and codes-of-conduct, ii) delegated and implementing acts, and iii) harmonised standards to cope with the uncertainty and complexity of AI – potentially at the expense of predictability. The study therefore focuses primarily on how the AI Act addresses the emergence of general-purpose AI and generative AI, to illustrate challenges associated with regulating rapidly developing technologies. In conclusion, the paper argues that while flexibility is unavoidable when drafting law explicitly targeting such a swiftly moving and conceptually blurry field and concept as AI, it also entails trade-offs such as reduced legal predictability, which is concerning since predictability is essential for ensuring trust and legal certainty in the regulatory framework around this set of technologies.