AI Regulation in the European Union and Trade Law How can accountability of AI and a high level of consumer protection prevail over a trade discipline on source code?

The Federation of German Consumer Organisations (Verbraucherzentrale Bun-desverband – vzbv) has commissioned this study from the Institute for Information Law (IViR) at the University of Amsterdam, in order to shed light on the cross-border supply of AI technology and its impact on EU consumer rights.
In the current negotiations on electronic commerce at the World Trade Organisation (WTO), the EU supports the introduction – in the legal text – of a clause which prohibits the participating countries to introduce – in their national laws – measures that require access to, or transfer of, the source code of software, with some exceptions. This is a cause for concern for experts and rights advocates, as such a clause – if not carefully conditioned – can prevent future EU regulation of AI that may be harmful to consumers.
This study forms a comprehensive understanding of this issue that intersects three different areas: (1) emerging EU governance of AI and (2) the application of EU consumer protection law to AI with (3) the EU’s position in the WTO electronic commerce negotiations.
This study concludes that the source code clause within trade law indeed restricts the EU’s right to regulate in the field of AI governance in several important ways. This study raises an important EU policy issue that deserves to be put to democratic scrutiny and discussion before the EU agrees to a new clause on software source code in a plurilateral WTO agreement on electronic commerce.