Automated Decision-Making (ADM) in EU Public Law

Abstract

Decision making in EU public law and the implementation of policies is increasingly supported by automation. The understanding of the effects thereof on rights and procedures as well as concepts of how to ensure accountability of such automated decision making (ADM) in EU public law are evolving and are influenced by a developing legislative framework and interpretation by the CJEU as well as developing case law by courts in the EU and the Member States.

Automated decision-making (ADM) is based on software supporting, or replacing, elements of human decision making in implementation of EU law. ADM systems are deployed in an increasing amount of policy areas. Improved availability of information, advanced computation power and advanced forms of programming using fast evolving technologies to process such information produces benefits for decision-making. But integrating technological solutions into decision making procedures also risks introducing potential dysfunctionalities, diminishing individual rights, and reducing accountability.

A key feature of the integration of ADM technologies in various phases of decision-making is that it has a profound effect on procedures leading to the delivery of public policies in the EU. This has the potential to improve decisional quality and efficiency. But equally it can influence the realisation of key procedural values of public law in the EU. Influencing procedures on the basis of technical specifications without clear orientation towards values and rights in EU law risks a growing disconnect between real-life procedures and central values and principles of democratic societies operating under the rule of law, which in turn can result in increasing de-legitimisation of the exercise of public powers.

This chapter looks at central questions which the use of ADM in public decision-making procedures in the scope of EU law raises in terms of public law. It first analyses the role and the origin of information as source of decision making in EU public law and the automated thereof. It secondly looks at the central values and fundamental rights touched by ADM. Third, the chapter asks which requirements of technical design of ADM systems and their relation to the data basis, which are used as sources of information searches and analysis are necessary.

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

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