The digitalisation of public administration within the European Union is reshaping decision-making governance, notably through the growing reliance on artificial intelligence systems for automated decision-making. These systems, designed to enhance decision-making efficiency, are increasingly used at every stage of migration and asylum processes, from forecasting for future mobility to identity verification and settlement assistance. While these technologies promise enhanced efficiency in decision-making, they also present challenges, such as the potential infringement of fundamental rights. This paper assesses the capacity of European Union law to safeguard the rights of migrants and asylum seekers subjected to automated decision-making, considering the proliferation and intersection of legislative instruments in the areas of data protection, artificial intelligence, and migration and asylum. It highlights the loopholes in the General Data Protection Regulation, the Artificial Intelligence Act, and the New Pact on Migration and Asylum, showing how these frameworks fall short of addressing the risks posed by automated decision-making in these areas. The analysis situates these shortcomings within the European Union co-legislator’s ex-ante application of the general principle of proportionality, demonstrating that proportionality has ceased to function as an autonomous safeguard against public authority overreach, and arguing that its role must be revisited.
This paper examines the role of supervisory authorities in ensuring compliance with the EU’s data protection rules under the General Data Protection Regulation (GDPR) and the Data Governance Act (DGA), highlighting the significant overlap between the two frameworks. While both aim to support the EU’s internal market, their focuses diverge. While the GDPR centres on personal data protection, the DGA promotes the European data economy and digital single market. This overlap risks bringing about legal uncertainty, regulatory fragmentation, and potential incoherence regarding personal data protection in the EU’s digital market. Although the DGA expressly notes that it operates without prejudice to the GDPR, this paper argues that the DGA’s supervisory mechanisms are inadequate to prevent inconsistencies in applying and enforcing EU data protection rules. Data Protection Authorities (DPAs) are infrequently designated as competent bodies under the DGA, limiting their role in its enforcement, even when personal data issues arise. Despite provisions requiring cooperation between DPAs and competent authorities under the DGA, issues may emerge with regard to competence allocation and the requirement of complete independent supervision of personal data protection. Furthermore, informal cooperation mechanisms may hinder quick and transparent responses to data protection violations. Ultimately, these complexities jeopardize the individual’s right to data protection through effective public enforcement, threatening the coherence and effectiveness of the EU’s regulatory framework.
With public administration becoming increasingly algorithm-infused, it is crucial to ask how much should we understand and communicate about the algorithmic decision-making processes involved therein? To answer this question, this article focuses on the EU law general principle of administrative reason-giving. This principle has been developed for ‘traditional’ human-centred administrative decision-making, yet must now be applied in the algorithmic context. To assess what kind of explanations should administrative bodies give for algorithmic decisions, this article first studies the functions of the reason-giving duty. Second, it analyses EU secondary law—the relevant provisions of the General Data Protection Regulation and the Artificial Intelligence Act—to see what legal requirements already exist for explaining algorithmic output, and whether they meet the various functions of the reason-giving duty. It transpires that not all administrative algorithmic decisions fall within the scope of application of EU secondary legislation concerning algorithmic explanations. Some administrative algorithmic decisions are not subject to any specific explanation obligations. This could leave the rights of decision recipients less protected. Hence, this article advocates for developing an explanation standard applicable to all administrative algorithmic decisions; a standard that would be compatible with the EU law general principle of administrative reason-giving.
The Court’s central message in Pan Europe ( Closer ) is that the principle of mutual recognition is not absolute. When decisions fail to consider the most recent scientific and technical knowledge, the precautionary principle must be applied. This case serves as a guide for the proper application of the precautionary principle, particularly in situations where it may come into tension with the principle of legal certainty—an issue that can arise when mutual recognition of plant protection product (PPP) authorisations is applied between examining and authorising national authorities across borders. In the end, the Court has put more flesh on the bones of the application of the principle of precaution, thereby strengthening the development of environmental protection governance in Europe. The ruling must be welcomed, particularly given the current difficult political context, which undermines the application of the precautionary approach. This case note is divided into three main sections. Section 2 focuses on the key facts and provides a summary of the ruling and its key reasoning. The other main sections develop and comment on the ruling’s key legal issues. Section 3 analyses the ruling in light of mutual recognition, mutual trust, and the PPP Regulation, while section 4 examines the extensive guidelines the Court provided to national authorities and courts. In doing so, it also considers new rulings by national courts applying PAN Europe ( Closer ) and PAN Europe ( Evaluation des propri??t??s de perturbation endocrinienne ), the latter of which is important for interpreting the former. Both rulings were delivered on the same day by the Third Chamber of the Court.
Public administration provides ideal testing grounds for AI tools to improve decision-making. AI can streamline repetitive tasks and provide novel insights into complex problems. However, it also risks creating new issues, sometimes exacerbating existing ones for which citizens must pay the price. The risks linked to AI use can be magnified in the administration, where decision-making is held to a high standard due to public interest. Opaque and erroneous decisions as well as increased State power are the downsides of AI tools that are poorly designed or used inappropriately by public actors. This could undermine the legality, fairness, and trust in public decisions. As AI use by the administration is still experimental, concrete examples are punctual and scattered internationally. Thus, through the study of the experimental use of algorithms or AI models by public actors in France, the U.S.A., Denmark, and India, the present paper contributes to the legal discussion on the use of AI in the public sector. The limits of existing regulatory responses to AI are also discussed. The paper concludes that public administrations’ willingness to use AI for decision-making is proof that their main concern has always been efficiency, despite the recent rise in Europe of strong rival notions like transparency 1 and administrative democracy 2 .
Artificial Intelligence (AI) offers significant opportunities to enhance the efficiency and accuracy of public action, especially in domains characterized by risk and uncertainty, such as food safety. In this context, the European Food Safety Authority (EFSA) has started to explore the use of AI applications in its risk assessment activities. Building on this premise, the paper examines what has been described as the ‘automation’ of scientific risk assessment and investigates the regulatory and institutional challenges arising from this technological shift. After outlining the main AI tools and applications that EFSA is considering for the performance of its tasks, the paper analyzes the problems raised by such uses within the already controversial role of EFSA in the EU risk analysis system, and tests whether the existing regulatory framework–in particular the AI Act and the General Food Law–is adequately equipped to address these issues.
Digitalisation promises promptness, accuracy, interoperability, and cost reduction, yet it also generates significant risks relating to privacy, non-discrimination, legitimacy, accountability, sunk costs and cybersecurity. Structuring the analysis along the Collingridge qualities of inclusion, openness, and reversibility, the paper follows the lines of inquiry of the 2024 REALaw Young Researchers’ Forum and focuses on the challenges of algorithmic decision-making (ADM), including biased datasets producing discriminatory outcomes, opacity in automated decision-making undermining the duty to give reasons, and limited access to effective remedies. It further demonstrates that existing EU legal frameworks, including the GDPR and the AI Act, provide fragmented and incomplete safeguards in the context of ADM. The paper argues that harmonised standards for transparency and contestability are essential to ensure that digitalisation contributes to, rather than erodes, good administration in the European Union.
The 'Omnibus' simplification programme on which the von der Leyen II Commission has embarked is part of a long tradition. It dates back to at least the SLIM programme of the 1990s and has been relaunched by every Commission president (Prodi, Barroso, Juncker and von der Leyen I) since. While regulatory complexity and simplification can be measured according to several criteria, it can be expected that, all else being equal, simpler regulation is at least less voluminous than more complex regulation. The Commission also regularly argued for the repeal of legislation and for the reduction of the EU acquis. However, a simple look at the Official Journal shows that the volume of EU regulation has continued to grow throughout all simplification programmes: the OJ's annual page count is now six times what it was in the 1990s. The number and length of the Commission's own legislative proposals seem to contribute to this.
The 'Do No Significant Harm' (DNSH) principle represents a key development in the European Union's integration of environmental sustainability within its financial and regulatory frameworks. Initially introduced as a classification tool under the EU Taxonomy Regulation, the DNSH principle became a mandatory condition under the Recovery and Resilience Facility (RRF) Regulation, raising several questions as to its application and implications throughout the multi-level disbursement of EU funding. This paper explores how the operationalization of the DNSH principle within the RRF framework imposes substantive environmental obligations on Member States. It analyses the cascading application of the DNSH from the EU to the national level, emphasising its function in aligning financial support with the EU's environmental objectives. The mandatory prescription of the principle imposes environmental conditions that affect public procurement processes related to the National Recovery and Resilience Plans. National authorities responsible for the implementation of RRF projects must navigate these novel requirements, using their discretion to balance compliance with RRF's mandatory environmental objectives with other interests involved in domestic administrative procedures. This article further discusses the relationship of the DNSH principle with existing EU and domestic environmental legislation, highlighting the challenges of coordinating these frameworks under the RRF. Using the Italian National Recovery and Resilience Plan and related domestic case law as an example, the paper provides critical insights into the legal challenges and the transformative potential of the DNSH principle in environmental governance.
This article explores the application of the principle of energy solidarity in the EU's post-crisis energy law in light of its recognition by the Court of Justice of the European Union (CJEU) in its seminal OPAL judgment in July 2021. The article argues that EU secondary law has yet to unpack the full potential of the energy solidarity principle. So far, it remains strongly tied to security of supply. Despite first attempts, it has not yet been anchored in secondary legislation oriented towards the priorities of EU energy policy in the area of climate change mitigation. Given recent proceedings before and judgments of the CJEU, however, such an extension of the solidarity principle may only be a matter of time, although there is uncertainty as to the effect of this development: as a context-dependent principle, energy solidarity could reinforce, but also restrain, decarbonisation efforts of the Member States and the EU.
This contribution aims to present the main conclusions arising from the articles collected within the special issue 'The Evolving Role of Principles in EU Environmental Law'. After an explanation of what the editors understand 'principles' in the EU environmental law acquis to be and their core features, the contribution reviews the strands of literature concerning the environmental principles and highlights the contribution made by the special issue to the scholarly debate on the role of principles in EU (environmental) law. The contribution closes by highlighting three main conclusions: first, the interpretation of the principles has stabilised in specific contexts, but the specific concretisations within such contexts feed back into the content of the principles creating the potential for legal innovations. Second, the principles cannot provide a coherent and complete framework within which individual rules develop because of their diverse nature. Third, the dynamics of the operation of the principles point to their ability to focus on core questions that need to be addressed when discussing and shaping the environmental acquis. Thus, whilst the vagueness and flexibility of the environmental principles pose risks, they also function as a beacon guiding the journey towards a robust and effective environmental law.
This article examines the versatility of the precautionary principle in EU environmental law, highlighting its dual nature as both a general policy statement and a legally significant concept. Building on an expanding body of literature that explores the multiple roles of environmental principles in legal reasoning, the article focuses on the unique malleability of the precautionary principle. It argues that this malleability stems from the principle's inherent "sloganistic" qualities—its capacity to simplify complex ideas, remain definitionally flexible, galvanise disparate actors, and function simultaneously as a policy statement and a policy-implementation tool. The article unfolds in three parts. First, it reviews legal and academic literature to show how the precautionary principle, despite its legal entrenchment, continues to embody intuitive policy ideas. Its flexibility enables it to operate across a range of legal and political contexts, although this also raises methodological challenges when interpreting the principle in specific legal settings. Second, it draws on policy communication literature to identify four key characteristics of slogans and demonstrates how each maps onto features commonly attributed to the precautionary principle. Third, the article explores the implications of this sloganistic nature for legal reasoning. Using case law from the Court of Justice of the European Union, it shows that these qualities persist even in concretised legal applications of the principle. The article concludes by suggesting that this dual character—simultaneously legal and policy-driven—has important consequences for how the precautionary principle is interpreted and applied, meriting further investigation.
The Court of Justice holds in Protectus that the withdrawal of a (legal) person's authority to access EU classified information (EUCI) falls within the scope of Article 47 of the Charter of Fundamental Rights of the EU. This provision guarantees the rights of the defence. Limitations of these rights as a result of non-disclosure of information underlying a withdrawal decision, may be justified. However, such limitations must be strictly necessary, for example to protect national security. Moreover, such limitations must be counterbalanced by the judicial review by the national court of the confidential information and by the disclosure to the person concerned of the essence of the grounds of the decision. If the national court finds that non-disclosure of confidential information is not justified, Article 47 of the Charter does not require the court to disclose this information of its own motion to the person concerned. It may leave this to the national authorities. However, if they refuse to disclose this information, the national court must exclude it from its examination and base its judgment only on the open grounds and evidence. This contribution reflects on the Court's ruling in Protectus in the light of its earlier case law and the case law of the European Court of Human Rights.
In three joined pronouncements from mid-2024, collectively referred to here as Hann-Invest, the European Court of Justice decided to continue its incursion into the organisation of the domestic judiciary. We are thus confronted with a new instalment in the series that commenced back in 2018 with Associação Sindical dos Juízes Portugueses. Ostensibly, the present judgment engages with a procedural delicacy from Croatia. Potentially, however, it carries a wider significance for (the design and functioning of) judiciaries in other EU countries. The central issue is whether Union law allows for a so-called 'registration judge' to approve court rulings before they are officially issued, and whereby also so-called 'divisional meetings of judges' take place, capable of influencing, or even altering, those rulings' contents. Prima facie, the ECJ's answer looks predictable and uncontroversial. Simultaneously, it opens up a sizeable can of worms elsewhere, inviting critical comment on whether the Court missed the mark, while punching too powerfully.
