Algorithms, Automation and Administrative Procedure at EU Level

Abstract

The automation of administrative action is not a new phenomenon. In his 1966 doctoral thesis Luhmann already predicted the great impact it would have on administrative organisation1, and the German Federal Administrative Procedure Act devoted some relevant provisions to it in its initial version of 19762.

The great interest in its legal regulation today is due to two main factors. The first, of course, is the significant technological development that has taken place in recent years in the field of computing, which has made automation capacities in both the public and private sectors cheaper and multiplied, and which has made possible the qualitative leap that machine learning algorithms represent.

The second factor, linked to the previous one, is the risks associated with this quantitative and qualitative change, which have already materialised in numerous episodes of administrative malfunctioning. Such episodes have occurred both in Europe and, above all, in the United States, whose agencies have relied heavily on automation, often to reduce personnel costs. They have often led to massive and hard-to-detect errors in the reduction of social benefits for disadvantaged groups. The proliferation of these episodes has even called into question the very legitimacy of the administrative state.

This Chapter aims to underline the important contribution of the classical institution of administrative procedure to the current debate on algorithmic accountability in the public sector. It will argue that the administrative procedure constitutes an important instrument to achieve an adequate development of automation and artificial intelligence in administrative decision-making, extracting its great potential without undermining the rights of the citizens concerned.

Special attention will be paid to the European Union’s own administration (consisting mainly of the Commission and the European agencies), in line with the case study that has been carried out in recent months and which is summarised in the annex. And it will explore the possibilities for improving the Proposal for a Regulation on Artificial Intelligence (AI Act) currently under discussion by the EU legislator6 with some suggestions that could be incorporated into a new specific Title on the use of advanced algorithms by the EU administration.

Keywords: INDIGO, Digital Governance, Law and Technology, EU Law

JEL Classification: O10, O19, O38, K39, I18, I30, G38