The Hidden Reach of the EU AI Act: Expanding the Scope of EU Public Power
In June 2024, the European Union adopted the AI Act, marking a historic step as the first comprehensive regulation of artificial intelligence (AI) on a global scale. As the adoption of AI technologies grows across various sectors, the implications of the AI Act will be significant, particularly within the realm of public administration.
The Role of AI in Public Administration
The AI Act mandates that Member States align their laws and practices with its provisions, which will affect national administrative processes. AI systems are increasingly being utilized for crucial public functions such as:
- Allocation of public benefits
- Crime prevention
- Processing visa or asylum requests
In these areas, authorities may rely on AI-generated risk profiles to support their decision-making processes. This raises essential questions about the implications of AI on individual rights and public governance.
Beyond Immediate Provisions: The Second Order EU Law
A critical yet often overlooked aspect of the AI Act is its potential to influence public authorities beyond its immediate provisions. As an EU regulation, it activates what is known as second order EU law, which encompasses general principles of Union law and the EU Charter of Fundamental Rights (CFR). This relationship is paramount as it may lead to the Europeanisation of national administrative law and blur the lines between EU public law and domestic public law, especially concerning digital regulation.
The Trigger Function of the AI Act
Although the EU lacks a general competence concerning fundamental rights, the Charter constrains Member State actions only within the scope of existing EU competencies. This is encapsulated in Article 51(1) of the CFR, which states that the Charter applies to Member States only when implementing Union law. Thus, the applicability of the Charter is not automatic upon the adoption of the AI Act; a direct relationship between national activities and Union law is necessary.
The Court of Justice of the European Union has clarified that a specific rule of EU law must be applicable, independent, and distinct from the fundamental right itself to trigger the Charter’s applicability. Consequently, Member State activities fall under EU law only if they are significantly regulated by the AI Act.
Implications for Administrative Processes
Given that the AI Act predominantly establishes procedural obligations to ensure the fairness, legality, and accuracy of AI outputs, aspects of administrative procedure are more likely to fall within EU law than substantive elements. This means that the principles of procedural justice enshrined in the Charter and general principles of Union law will be applicable to national authorities by virtue of the AI Act.
Practical Scenarios: AI in Action
Consider a public authority that utilizes AI-generated risk profiles to assess the likelihood of individuals committing student loan fraud. The deployment of an AI system for risk profiling is explicitly regulated by the AI Act, necessitating a fundamental rights impact assessment and ensuring human oversight during its operation.
However, the decisions based on these AI outputs present a different challenge. While the AI Act regulates the creation of risk profiles, it has fewer provisions addressing the decisions made as a result of these profiles. For example, Article 86 mandates that authorities provide “meaningful explanations” regarding the role of AI in decision-making processes. This procedural requirement must align with the principles of good administration under EU law, ensuring individuals are informed and can challenge decisions that adversely affect them.
Significance of EU Principles of Procedural Justice
The practical significance of the AI Act’s impact is contingent upon the existing obligations under national law. Where EU obligations differ from national requirements, authorities are compelled to adhere to EU standards when AI systems are involved. Conversely, if national law already meets EU thresholds, the changes may be less pronounced.
This dynamic is critical as the applicability of EU principles of procedural justice has far-reaching consequences for the interaction between EU and national public law. The Court’s involvement in monitoring compliance with fundamental rights signifies a shift in regulatory oversight, positioning EU law as a primary framework for public governance.
Conclusion: The AI Act as a Catalyst for Change
In summary, the AI Act serves not only as a regulatory framework for AI technologies but also as a catalyst for the Europeanisation of national administrative law. By triggering the applicability of EU principles of procedural justice, it is reshaping the landscape of public law in the context of digital governance, ultimately expanding the scope of EU public power.
