EU Administrative Decision-Making Delegated to Machines – Legal Challenges and Issues

Identifying Individual Rights in EU Law

Challenges to anti-doping regimes before the Code Before the advent and adoption of the Code, legal challenges were made, from time to time, by athletes, to the enforceability of doping rules and regulations before national courts and before supranational tribunals and courts, such as the European Court of Justice. The challenges sought to invoke a range of arguments, which are united by the contention that the anti-doping rules in issue should not be enforced because they were contrary to the fundamental individual rights and freedoms which were protected by national or international constitutional provisions or by general principles of national and international law. Fundamental rights such as the rights of the individual to work, to privacy, not to be punished without fault, and the right to equal treatment and not to be subjected to discrimination, protected by national legal rules, were relied on to challenge the enforceability of the strict liability ‘no fault’ regime common in anti-doping rules. Principles of competition law protecting individuals from anti-competitive conduct and agreements, and from restrictions on the freedom to work and provide services, and common law contractual principles protecting individuals from restrictions in restraint of trade, were also relied on to contend that periods of ineligibility should be set aside. Such challenges go beyond questions concerning the interpretation of the anti-doping rules in question (or, indeed, challenges to the fairness of the hearing process) and seek to set aside the provisions of rules on the ground that, while their terms may be clear and be the subject of agreement, they infringe overriding fundamental rights and should not, as a result, have legal effect.

Challenges to anti-doping regimes before the Code Before the advent and adoption of the Code, legal challenges were made, from time to time, by athletes, to the enforceability of doping rules and regulations before national courts and before supranational tribunals and courts, such as the European Court of Justice. The challenges sought to invoke a range of arguments, which are united by the contention that the anti-doping rules in issue should not be enforced because they were contrary to the fundamental individual rights and freedoms which were protected by national or international constitutional provisions or by general principles of national and international law. Fundamental rights such as the rights of the individual to work, to privacy, not to be punished without fault, and the right to equal treatment and not to be subjected to discrimination, protected by national legal rules, were relied on to challenge the enforceability of the strict liability ‘no fault’ regime common in anti-doping rules. Principles of competition law protecting individuals from anti-competitive conduct and agreements, and from restrictions on the freedom to work and provide services, and common law contractual principles protecting individuals from restrictions in restraint of trade, were also relied on to contend that periods of ineligibility should be set aside. Such challenges go beyond questions concerning the interpretation of the anti-doping rules in question (or, indeed, challenges to the fairness of the hearing process) and seek to set aside the provisions of rules on the ground that, while their terms may be clear and be the subject of agreement, they infringe overriding fundamental rights and should not, as a result, have legal effect.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) establishes a comprehensive legal framework to address sexual offences against persons below the age of eighteen, rendering accurate age determination a decisive factor in fixing criminal liability and sentencing. Despite its centrality’s age verification under the Act remains fraught with legal, medical, and evidentiary challenges. Documentary evidence such as birth certificates and school records is often unavailable or unreliable, while medical age estimation techniques, including ossification and dental tests, are inherently probabilistic and susceptible to biological, nutritional, and socio-economic variations. This paper critically analyses the statutory provisions governing age determination under the POCSO Act, alongside judicial interpretations and prevailing medical methodologies. It highlights significant inconsistencies, evidentiary limitations, and judicial dilemmas through an examination of landmark case law, reflecting the ongoing tension between robust child protection and adherence to procedural fairness and due process. The study further engages in a comparative and reform-oriented analysis, advocating for the adoption of standardised age determination protocols, the use of multi-disciplinary and multi-method medical assessments, and the exercise of calibrated judicial discretion in borderline age disputes. By integrating legal, medical, and ethical perspectives, the paper seeks to strengthen the implementation of the POCSO regime while ensuring the protection of children without compromising the fundamental rights of individuals involved in age-related controversies.

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

Balancing Individual Rights with Social Welfare: An Analysis of Judicial Interpretations in India 1 Maisnam Loyalakpa Meitei The relationship between Part III and Part IV of the Constitution of India implicates a captivating legal and philosophical gap. These two Parts under the Constitution often seemingly represent odds when the questions and issue of individual rights and social welfare mandates by Part III & Part IV of the Constitution in motion. This poses serious imbalance and far causing complicacies in between the two Parts of the Constitution. This paper seeks to exhibit the role of the judiciary, and how the judiciary harmonized the imbalanced mandates of the Constitution giving way out ultimately the governance of the country then and now. The complexities of the judicial pronouncement though is insanely complex than any reader thought of, yet this paper tries to lay only the few brief crux. Post-independent India, but in the first decade, legal positivism often led to guide judicial pronouncements. This often led to giving effect to social legislation than fundamental rights of the individual. The mandate of Part IV of the Constitution gain considerable recognition than individual fundamental rights. Prominent case like Re. Shankari Prasad case is an exemplary landmark judicial pronouncement. Denying the fact that only until the coming of Re. I.C. Golaknath case and the culmination of Re. Kesavananda case finally led to surpass all the earlier judgments. These later cases’ pronouncement of the Apex court gives unshakable prominence of the fundamental rights of the individual. This paradigm change balances the conundrum between Part III and Part IV of the Constitution by propounding the Basic Feature theory in the Constitution. This harmonization through judicial interpretations of the Supreme Court of India in between the Fundamental Rights and Directive Principles of State Policy became fundamental to policy making and ultimately in governance. With this analysis, the paper tries to illustrate the role of the judiciary, her impeachable virtue to check and balance; the brave dexterity of the judiciary and judicial interpretation, and her triumph of giving justice to fundamental rights of every individual and social welfare at large. Keywords: fundamental rights, judiciary, judicial interpretation, Part IV, etc. 1 PhD Research Scholar, Department of Law, Manipur International University, Imphal 795140, Manipur, India MIU Registration No. MIU/PhD/2023/S1009 Email: maisnamloyalakpameitei@gmail.com (M) +91 9436815735

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

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.

The path towards establishing and advancing human rights’ protection within the EU legal system seemed straightforward a decade ago. With the entry into force of the Lisbon Treaty in 2009, the Charter of Fundamental Rights of the EU became part of primary law, together with a commitment of accession to the European Convention on Human Rights. In 2010, Protocol 14 to the ECHR entered into force, allowing the EU to accede to the ECHR. A draft agreement on accession was finalized thereafter. In 2014, however, the Court of Justice of the European Union issued a negative opinion on the draft accession treaty, citing perceived threats to autonomy of EU law, competence of the EU and powers of the Court. A year earlier, in February 2013, the CJEU rendered judgments in cases Fransson and Melloni whereby it provided crucial rules for interpretation of clauses 51(1) and 53, respectively, of the Charter. The field of application of the Charter was equated with the scope of EU law. Primacy, effectiveness and unity of EU law, both primary and secondary, were prioritized over human rights and fundamental freedoms recognized by international agreements, including the ECHR, as well as by the Member States’ constitutions. The realm of fundamental individual rights remains to this day the decisive grounds for asserting the core principle of EU constitutionality: the autonomy of EU law. Accession to the ECHR remains to this day a proclaimed goal of EU governing bodies, but little palpable progress is being made. Protection of fundamental rights at EU level has remained a point of contention among academics. Some question the very need for its existence, in view of constitutional guarantees by Member States and the ECHR. Others, however, claim that the CJEU sacrificed protection of individuals’ rights for the interest of promoting constitutionality of the EU. These critiques seem unwarranted. Article 2 TEU necessitates existence of an efficient mechanism for protection of fundamental freedoms at EU level. Historical examples of political communities built on multi-ethnic, civic model all show necessity of integrating human rights protection at the constitutional level. Constitutionality of the EU has been developing for six decades, for the most part under the guise of autonomy of EU law. It requires that primacy of fundamental rights, as guaranteed by EU law, be affirmed both vis-a-vis Member States and international treaties. However, one may not expect that fundamental rights and freedoms within the EU be protected in a uniform and efficient manner unless a system for enforcing such rights and freedoms is not put in place first.

The EU Charter of Fundamental Rights Five Years On: The Emergence of a New Constitutional Framework?


 
 
 In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.
 The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation and any subsequent revision of administrative actions. False or misleading data in regulatory analysis, when unchecked, pollutes the regulatory process—and administrative decisions that rely on flawed data should be struck down as arbitrary and capricious.
 Despite their importance to the administrative process, the actual economic and scientific analyses that underlie cost-benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges.
 
 
 
 In this Article, we use the economic analyses accompanying the Trump administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions, and as a vehicle to discuss approaches to accommodate this procedural need moving forward.
 
 
 
 
 

Technological advancements have transformed contemporary societies, allowing for the proliferation of Artificial Intelligence. Nevertheless, artificial intelligence has raised several concerns regarding the impact of artificial intelligence on fundamental rights. The European Union (EU) has addressed the problems arising from the adoption of Artificial Intelligence in regulation, policy, and legal challenges. This article examines the multifaceted relationship between Artificial Intelligence (AI) and fundamental rights within the European Union (EU), highlighting the legal, ethical, and governance challenges posed by rapidly advancing AI technologies. It outlines the EU’s foundational rights framework - rooted in the Charter of Fundamental Rights, international human rights instruments, and the European Convention on Human Rights - and analyses how AI systems intersect with key rights, including privacy and data protection, equality and non-discrimination, freedom of expression and information, human dignity, autonomy, and procedural safeguards. The paper reviews major regulatory instruments such as the General Data Protection Regulation (GDPR) and the proposed AI Act, emphasizing their risk-based approaches, obligations for high-risk systems, and implications for accountability and human oversight.

In my thesis, I explore the intricate relationship between mental deception and criminal law, particularly in the context of advancing technology and psychological manipulation. I argue that mental deception poses significant threats to individual autonomy and decision-making, thus necessitating robust legal frameworks to safeguard fundamental rights and freedoms. The research is structured around three core areas: the definition and historical evolution of mental deception, the legal perspectives and challenges associated with its regulation, and international case studies that illustrate diverse approaches to the issue. Through a detailed examination of these components, I highlight the importance of legislative measures that can adapt to the complexities of mental deception, ensuring effective protection against manipulative practices. The findings underscore the need for ongoing dialogue among policymakers, legal scholars, and technologists to foster a legal environment that prioritizes individual rights in a rapidly evolving digital landscape.