Limits to discretion and automated risk assessments in EU border control: Recognising the political in the technical

Abstract

AbstractThis article analyses how the automation of border control challenges the rule of law requirement on sufficient limits to discretion by using the idea expressed by the Court of Justice of the European Union (CJEU) non‐delegation doctrine that it is possible to make a clear distinction between technically complex assessments and political discretion. To illustrate these challenges, the article uses the examples of the European Travel Information and Authorisation System (ETIAS) and the conferral of discretionary powers to EU agency Frontex to establish pre‐determined risk criteria. The article argues that not recognising the inherent political aspects of exercising technical powers leads to insufficient limits to discretionary powers in the context of automated risk assessments. Beyond raising serious rule of law concerns of arbitrary exercise of power, the idea that technical assessments and policy choices can be clearly separated enables ‘algorithmic discretion’ as a new form of administrative discretion.