{"id":118400,"date":"2025-04-03T00:04:33","date_gmt":"2025-04-02T22:04:33","guid":{"rendered":"https:\/\/ceadigilaw.org\/desafios-normativos-implementacion-ia-en-administracion-publica-espanola-agravio-comparativo-sector-publico-y-privado\/"},"modified":"2026-07-17T21:34:26","modified_gmt":"2026-07-17T19:34:26","slug":"desafios-normativos-implementacion-ia-en-administracion-publica-espanola-agravio-comparativo-sector-publico-y-privado","status":"publish","type":"post","link":"https:\/\/ceadigilaw.org\/en\/blog\/desafios-normativos-implementacion-ia-en-administracion-publica-espanola-agravio-comparativo-sector-publico-y-privado\/","title":{"rendered":"Regulatory Challenges in Implementing AI in Spain’s Public Administration: Unequal Treatment of the Public and Private Sectors"},"content":{"rendered":"

By Antonio Tejeda Encinas<\/a>, President Euro-American Committee on Digital Law \u2013 CEA Digital Law<\/a><\/p>\n

In the previous article, “Artificial Intelligence and the Systemic Crisis of the Spanish Public Administration”<\/a>, I outlined a worrying reality: the coexistence of ambitious artificial-intelligence legislation with a Spanish public administration that still faces significant digitalization challenges. Technological obsolescence, a lack of interoperability, insufficient digital training for civil servants and poor coordination of responsibilities raise serious doubts about the Spanish public sector’s ability to implement and manage AI systems effectively and ethically. In this context, the recent proposal to exclude public administrations from the penalty regime established by the Draft Law on the Proper Use and Governance of AI adds a new layer of complexity and potential risk.<\/p>\n

This draft bill, approved by the Council of Ministers on 11 March 2025, seeks to establish a regulatory framework for the development and use of artificial intelligence in Spain, adapting national legislation to Regulation (EU) 2024\/1689 (AI Regulation or AI Act).<\/p>\n

Articulation with the European AI Act<\/strong><\/p>\n

Regulation (EU) 2024\/1689 establishes a common legal framework for artificial intelligence in the European Union, applicable to both the private and public sectors. The exclusion of the General Government from the sanctioning regime in the Spanish draft bill could generate discrepancies with the Community framework, since the European regulation does not provide for such exemptions for public administrations. This divergence could lead to conflicts in the application of the regulations and questions about Spain’s compliance with European obligations.<\/p>\n

Specifically:<\/p>\n

Impact on regulatory harmonisation within the EU:<\/strong><\/p>\n

The Regulation sets uniform standards to ensure that all actors, public and private, are held accountable for the use of AI. The Spanish exemption could be interpreted as a violation of the principle of equality before the law, weakening European efforts to establish a coherent digital single market. This could lead to infringement proceedings against Spain, led by the European Commission, for failing to comply with the harmonisation requirements established in the EU framework.<\/p>\n

Penalties for non-compliance:<\/strong><\/p>\n

In similar cases, the European Commission has sanctioned member countries for failing to adapt their national legislation to European directives. Spain could face financial fines or budgetary restrictions on funds allocated to technological innovation if this regulatory exclusion persists.<\/p>\n

Consolidation of repetitive arguments<\/strong><\/p>\n

The lack of an effective sanctioning regime for general government acts as a “carte blanche” to act without due diligence in the field of AI, which generates two main consequences:<\/p>\n

-Erosion of citizen trust: The perception that public administrations are exempt from sanctions fuels distrust in government institutions and fosters a feeling of inequality vis-\u00e0-vis the private sector, subject to strict economic fines.<\/p>\n

-Operational risks: Public officials could prioritize speed over ethics in technological implementations, exacerbating problems such as discriminatory bias or erroneous automated decisions that affect fundamental rights.<\/p>\n

If, as previously argued in the previous article, government algorithms may already exhibit discriminatory biases and the administration suffers from a “systemic crisis” in its digital infrastructure, the absence of economic sanctions for the misuse of AI could have even more serious consequences. The possibility of a Ministry or a City Council deploying a “high-risk” AI system without the required safeguards or even a banned AI with the sole consequence of a warning not only represents a comparative grievance for the private sector, but also undermines citizen confidence in the fairness and responsibility of the State.<\/p>\n

The lack of an effective sanctioning regime for the General Government could be interpreted as a “blank cheque” to act without due diligence in the field of AI. If public officials perceive that errors or bad practices in the use of artificial intelligence do not have economic consequences, the incentive to prioritize ethics, transparency, and accountability could be significantly reduced. This situation is particularly worrying considering the already existing resistance to change and the distrust of automated systems expressed by some officials.<\/p>\n

As discussed in Part One, the justifications for this exclusion, based on ‘cash unity’ or the nature of the ‘general interest’, are weak in the face of the principles of equality and responsibility. Allowing the state to exempt itself from the sanctions that are imposed on citizens and companies breaks with the basic principle that the law should govern equally for all. Moreover, in an area as sensitive as AI, where errors can affect Fundamental Rights, this regulatory asymmetry could have a direct and detrimental impact on people’s lives, exacerbating the social consequences of the “algorithmic exclusion” already observed.<\/p>\n

The experience with the exclusion of fines for public administrations in the Organic Law on Data Protection (LOPD) and later in the GDPR offers relevant lessons. As noted above, this practice has been criticized for creating “islands of impunity” and has generated a perception of double standards. The absence of economic sanctions may have reduced the deterrent force of the actions of the Spanish Data Protection Agency (AEPD). It is foreseeable that the Spanish Agency for the Supervision of AI (AESIA) will face a similar situation if the exclusion of sanctions is maintained, limiting its ability to “effectively supervise” the Administrations.<\/p>\n

Against this backdrop, it is crucial to reconsider the exclusion of public administrations from the sanctioning regime in the AI Law. As suggested by various associations and experts, it is essential to eliminate or at least significantly limit this exemption. Establishing equitable accountability mechanisms is essential to ensure a responsible and ethical use of artificial intelligence in the public sector. This could include:<\/p>\n

* Allow economic sanctions for the General Government, perhaps with reduced ceilings and allocating the funds to ethical AI projects or social purposes.<\/p>\n

* Implement effective non-pecuniary sanctions, such as temporary suspension of AI systems, publication of breach reports, or withholding of funds.<\/p>\n

* Strengthen the independent supervision of public AI by the AESIA, granting it full control and audit powers.<\/p>\n

* Promote transparency and citizen participation in the development and use of AI by the Public Administrations.<\/p>\n

In short, the successful and ethical implementation of artificial intelligence in the Spanish public administration requires a coherent and robust regulatory framework that holds all actors, both public and private, accountable for their actions. Maintaining an exemption from sanctions for Public Administrations, in the context of the already existing systemic weaknesses, could perpetuate citizen distrust and undermine the legitimacy of the law itself and the rule of law. It is essential that equitable accountability mechanisms are put in place to ensure that the adoption of artificial intelligence in the public sector is carried out in a transparent, ethical manner and in accordance with the principles of equality before the law.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Antonio Tejeda Encinas, President Euro-American Committee on Digital Law \u2013 CEA Digital Law In the previous article, “Artificial Intelligence and the Systemic Crisis of the Spanish Public Administration”, I outlined a worrying reality: the coexistence of ambitious artificial-intelligence legislation with a Spanish public administration that still faces significant digitalization challenges. Technological obsolescence, a lack […]<\/p>\n","protected":false},"author":2,"featured_media":113665,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"wds_primary_category":0,"wds_primary_cea_women":0,"footnotes":""},"categories":[1102],"tags":[],"cea_women":[],"class_list":["post-118400","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-artificial-intelligence"],"acf":[],"_links":{"self":[{"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/posts\/118400","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/comments?post=118400"}],"version-history":[{"count":1,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/posts\/118400\/revisions"}],"predecessor-version":[{"id":119483,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/posts\/118400\/revisions\/119483"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/media\/113665"}],"wp:attachment":[{"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/media?parent=118400"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/categories?post=118400"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/tags?post=118400"},{"taxonomy":"cea_women","embeddable":true,"href":"https:\/\/ceadigilaw.org\/en\/wp-json\/wp\/v2\/cea_women?post=118400"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}