Assessing Cyber-Delegation in European Union Public Law

Abstract

Decision making in EU public law is increasingly supported by automation. Concepts of how to ensure accountability of such automated decision making (ADM) in EU public law are only just evolving. This chapter analyses the potential of applying existing concepts of EU public law, especially those developed in the context of the control of delegated powers, to the empowerment of public bodies to design decision-making procedures supported by ADM systems.

ADM systems are based on software supporting, or replacing, elements of human decision making. They are increasingly deployed in EU policy areas, which are implemented by multi-level data-sharing structures and common EU data bases. ADM systems can be simple support tools for human decision making, but with advancing technology, they may also advance towards becoming increasingly powerful covering more elements or more central elements of a decision-making process. The benefit of automating elements of decision-making procedures may include increasing the speed of decision making. Allowing for more decisions being taken in shorter time may be necessary, for example, in many areas of fast paced real-world action such as on financial markets. Automation also allows for enhanced cooperation and collaboration of various decision-making levels through sharing data and access to data in jointly established databases, such as, for example, in the field of customs, immigration and visas. Automation also allows for increasing the data volume that can be studied and taken into account in decision making, which for example is an important aspect of competition law enforcement in complex markets. ADM technology is making fast progress in line with advancements in both specifically designed and general-purpose programming of what is often referred to as artificial intelligence (AI).

These features result in certain specific challenges of ensuring accountability of decision-making procedures to concepts of public law. Challenges result especially from information asymmetries with regard to the type and quality of data taken into account, the lack of understanding of the ADM system’s compliance with duties of care and obligations of reasoning of decision-making. Therefore, insufficient or poor software-design may result in introducing IT-based dysfunctionalities into decision making procedures.

In a very simplified manner, tools to support accountability in public law, and associated legal principles, can be distinguished according to their timing in the decision-making cycle. Ongoing control and supervision of actors and procedures during a decision-making procedure. Ex post forms of review will be undertaken subsequent to a decision being taken and include accountability mechanisms such as judicial review often relying on reasoning obligations and aspects of transparency.

But also anticipatory tools govern the conditions of legislative conferral of powers or delegation to implement EU law to the administration exist. Anticipatory, ex ante mechanisms for identifying the possibilities of the use of ADM in the exercise of public powers under EU law allow to define tasks and to impose conditions for their exercise. Such anticipatory requirements can be created by the legislative body conferring administrative powers on the executive and setting out conditions for their exercise and subsequent administrative rulemaking and guidelines which can additionally specify the use of public powers concerned on an executive actor. This chapter explores whether such requirements of setting the standards for ex post accountability mechanisms, can be derived from rules on the conferral and delegation of powers in EU law. Can these principles be applied to control decision making with the help of ADM? Is it possible, on this basis, to conceptualise notions of conferral of powers to an executive actor using advanced information technology in the process of decision making – with this chapter using the notion of ‘cyber-delegation’ as short hand. Does this allow for enhancing accountability of the use of public decision-making?

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

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