The Role of the EU Right to Good Administration in Shaping Algorithmic Decision Systems

Compared to the private sector, public actors face tougher justification requirements for their decisions as a matter of administrative law; subjects of algorithmic decision systems must in that context be able to scrutinise whether a decision about them complies with all legal protection requirements vis-à-vis the State. More particularly, individuals need to know or understand the reasoning behind an automated decision. In the EU, decision-making in individual cases by public administrations is framed by EU law, EU general principles, and administrative procedures that are essential for administrative justice. The procedural dimension of the rule of law provides, in this sense, to natural and legal persons individual guarantees guaranteeing, among other rights, a clear understanding of the reasons behind an administrative decision. That individual guarantee stems from the fundamental right of good administration, which is a general principle of EU law, enshrined in Article 41 of the EU Charter of Fundamental Rights. The challenging question arising from the use of AI systems in public administrations is how the requirements imposed by Article 41 of the Charter fit the case of machine learning algorithms and more particularly in terms of the duty of care and the duty to give reasons imposed as a matter of EU law. This chapter highlights the challenges machine learning algorithms used in fully automated systems and recommender systems raise regarding the fundamental right of good administration. It then offers potential “by design” solutions as well as additional safeguards to tackle these challenges.