The EU AI Act and the challenge of protecting fundamental rights

While the Artificial Intelligence (AI) race is raging on the world market, several voices have called for effective regulation of this multifaceted technology and its ever-increasing capabilities. In this context, the European Union has recently adopted the first-ever comprehensive, binding law on AI, known as the EU AI Act. This instrument has a dual rationale. On the one hand, it is part of the European product safety policy and regulates AI systems and models placed on the internal market according to a risk-based approach. On the other hand, the AI Act makes the protection of fundamental rights against the harmful effects of AI a primary objective. Against this background, this article aims to test this hybrid rationale based on the novel concept of ‘risk (of harm) to fundamental rights’ introduced in the Act. This seems to combine the classic product safety risk-based approach with an emancipated version of the human rights-based approach which originates from the fields of development and international human rights. This article argues that, in so doing, the AI Act may shape a new ‘human rights riskbased approach’, which incorporates the protection of European public interests and extends their scope by translating them into the language of fundamental rights and values. The article explores the legal consistency and operational realization of this approach. First, it undertakes a mapping of fundamental rights’ protection in the letter of the AI Act and provides for an interpretation of its ratio legis in the light of the protection of fundamental rights’ narrative. Second, it assesses the ways in which the protection of fundamental rights could be successfully operationalized under the AI Act and makes concrete proposals to ensure the effectiveness of the fundamental rights risk-based approach in the AI context.