(1)

In 2021, the Council of Europe Committee of Ministers established a Committee on Artificial Intelligence (CAI) for the period 2022-2024, with the task of establishing an international negotiation process to develop a legal framework on the development, design and application of artificial intelligence (AI), based on the Council of Europe’s standards on human rights, democracy and the rule of law, and conducive to innovation.

(2)

On 30 June 2022, the Council of Europe Committee of Ministers instructed the CAI to speedily proceed with the elaboration of a legally binding instrument of a transversal nature, either a convention or a framework convention, on AI, based on the Council of Europe’s standards on human rights, democracy and the rule of law, in line with its terms of reference, focused on general common principles, conducive to innovation, and open to participation by non-member States, while taking into account other relevant existing international legal frameworks or those under development.

(3)

Subsequently, the Chair of the CAI proposed a zero draft of a Council of Europe convention or framework convention on artificial intelligence, human rights, democracy and the rule of law (the ‘convention’). That zero draft includes provisions on purpose and object, scope, definitions, fundamental principles, including procedural safeguards and rights applicable to all AI systems irrespective of their level of risk, additional measures for AI systems in the public sector and for AI systems posing ‘unacceptable’ and ‘significant’ levels of risk, a follow-up and cooperation mechanism, final provisions, including a possibility for the Union to accede to such a convention, and an appendix, under development, on a methodology for risk and impact assessment of AI systems.

(4)

The Union has adopted common rules that will be affected by the elements considered with regard to the convention. Those elements include in particular a comprehensive set of rules in the area of the single market for products (1) and services (2)for which AI systems can be used, as well as secondary Union legislation (3) implementing the EU Charter of Fundamental Rights (4), considering that those rights are likely to be adversely affected in certain circumstances by the development and use of certain AI systems.

(5)

Moreover, on 21 April 2021 the Commission submitted a legislative proposal for a regulation laying down harmonised rules for AI, which is currently being negotiated by the European Parliament and the Council. The convention overlaps to a large extent with that legislative proposal in its scope, since both instruments aim to lay down rules applicable to the design, development and application of AI systems, provided and used by either public or private entities.

(6)

Therefore, the conclusion of the convention may affect existing and foreseeable future common Union rules or alter their scope within the meaning of Article 3(2) of the Treaty on the Functioning of the European Union (TFEU).

(7)

Negotiations should be opened with a view to concluding the convention as regards matters falling within the exclusive competence of the Union, in order to protect the integrity of Union law and to ensure that the rules of international law and Union law remain consistent.

(8)

It is possible that the convention will set high international standards concerning the regulation of AI impacting human rights, the functioning of democracy and the observance of the rule of law, in particular in light of the work already carried out by the Council of Europe in that field.

(9)

This Decision should be without prejudice to the participation of Member States in negotiations for the convention and to any subsequent Member State decision to conclude, sign or ratify the convention, or to the participation of Member States in negotiations for the Union to accede to the convention.

(10)

National security remains the sole responsibility of each Member State in accordance with Article 4(2) of the Treaty on European Union (TEU). In the implementation of the convention, it is for the Member States to define, in accordance with Article 216(2) TFEU, their essential security interests and to adopt appropriate measures to ensure their internal and external security while not rendering Union law inapplicable or exempting them from their obligation to comply with Union law.

(11)

All Member States are also Members of the Council of Europe. In view of that special situation, Member States present at the negotiations for the convention should, in accordance with the principle of sincere cooperation referred to in Article 4(3) TEU, in full mutual respect, support the Union negotiator in carrying out tasks which flow from the Treaties.

(12)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (5) and delivered an opinion on 13 October 2022 (6),