The Use of artificial intelligence in Article 30 of Legislative Decree 36/2023 to the test of the EU AI Act

Abstract

The present work, in close to the publication of the AI Act of the European Union, relates the innovative (for the Italian legal system) application of artificial intelligence to the field of public procurement – as provided for in Article 30 of Legislative Decree 36/2023 – with the EU institutions that are about to see the light of day. With a brief introduction to the artificial intelligence systems that can be used in the sector in question, the paper focuses, first of all, on the problematic qualification of the field of public procurement as a high-risk activity, pursuant to and for the effects of Annex III of the AI Act. It is also highlighted who should burden, and from whom should come, that ‘human contribution’ that Article 30 of Legislative Decree 36/2023 establishes as mandatory for the purposes of the legitimacy of automated measures in the field of public procurement and the repercussions that determine, in this sense, the identification of the ‘operator’, public and private, as a key figure and legally responsible for human surveillance. The work ends by focusing on the governance and risk prevention systems, as set by the European legislator, with particular reference to impact assessment and regulatory testing.