Implications of regulating a moving target: between 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 development of AI. This paper examines the tension between fixity and flexibility when regulating AI in the EU by drawing on literature on the pacing problem and anticipatory governance, contrasted by sociolegal theory on the importance of predictability and legal certainty. Specifically, it analyses how the AI Act, under the aim of being “future-proof”, per relatively newfound EU terminology, employs various flexible mechanisms, such as i) voluntary measures and codes-of-conduct as soft governance, ii) delegated and implementing acts, iii) Commission’s decision, and iv) harmonised standards. The analysis shows that with this flexibility follows trade-offs such as reduced legal predictability, which is concerning since predictability is essential for ensuring trust and legal certainty in the regulatory framework, as well as a problematic shift in powers to the Commission and standardisation organisations.