An Introduction to Automated Decision-Making (ADM) and Cyber-Delegation in the Scope of EU Public Law

Abstract

Automated decision-making (ADM) systems are 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. They support decisionmaking and rule-making procedures by EU institutions and bodies as well as by Member State bodies acting in the scope of EU law. Improved availability of information and advanced computation power to process such information produces benefits for decisionmaking. But integrating technological solutions into decision making procedures risks introducing potential dysfunctionalities, diminishing individual rights, and reducing accountability. This paper introduces and gives an overview over many of the design questions which the use of ADM in public decision-making procedures in the scope of EU law therefore raises. Can compliance with general principles of EU administrative law and its specific legislative requirements be ensured in an anticipatory manner? 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? On the other hand, how should ADM technology relate to elements of human decision making and how to ensure meaningful ex post accountability mechanisms, remedies, and possibilities of effective judicial protection. The paper argues that addressing design questions must consider the nature of the technological integration into decision-making procedures and the decision-making phases in which ADM systems will be deployed. Further, the paper argues that the interface between an ADM system and the underlying data basis defines many of the legal issues relevant. Finally, another premise this paper develops is that it is necessary to distinguish between conditions governing, on the one hand, the quasi rule-making character of ADM systems from, on the other hand, individual decisions made with the help of ADM technology. On this basis, the paper discusses possibilities and requirements of review, especially of legal principles applicable in reviewing decision making with ADM in EU public law.