SMART CONTRACTS AND TECHNOLOGICAL NEUTRALITY: AN INTERNATIONAL PERSPECTIVE FROM THE DATA REGULATION

Abstract

This paper examines the principle of technological neutrality in the context of Regulation (EU) 2023/2854 (Data Act), with particular focus on the definition of smart contracts introduced by this regulation. Starting from its role as a structural pillar of electronic commerce law, the study assesses whether the European legislator’s approach effectively complies with this principle or, instead, introduces technological bias. The analysis first addresses the conceptualization of smart contracts, emphasizing their nature as mechanisms for automated execution rather than a distinct contractual category. It then explores the legal framework established by the Data Act, particularly its definition of smart contracts and the requirements imposed on their use within data-sharing agreements. The findings suggest that the definition adopted by the Regulation is not fully technologically neutral, as it incorporates elements that implicitly refer to specific technical architectures, especially those associated with distributed ledger technologies. This may lead to a restrictive interpretation of the regulation’s scope and raise concerns regarding systemic coherence. The paper concludes that preserving technological neutrality requires a functional approach to automated contracting, focusing on legal effects rather than technical implementation, thereby ensuring both regulatory adaptability and fair competition in the digital market.