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Melanie Fink and Barbora Budinská on EU Law Live

On 10 May 2021, Melanie Fink and Barbora Budinská published their views on recent developments in the areas of EU regulation of Artificial Intelligence and the Banking Union respectively as Op-Eds on EU Law Live.

EU Law Live is an online platform that publishes news updates, analyses, and Op-Eds by researchers and EU lawyers. On 10 May 2021, EU Law Live featured the work of two members of the Europa Institute.

Melanie Fink published an Op-Ed on ‘The EU Artificial Intelligence Act and Access to Justice’. On 21 April 2021, the European Commission presented its long-awaited proposal for a Regulation laying down harmonised rules on artificial intelligence (AI) – the Artificial Intelligence Act. In her piece, Melanie argues that the use of AI systems by the public administration raises specific challenges that should be addressed in the proposed Regulation. There is an inherent tension between the duty of the administration to justify its decisions and the limited explainability of some AI systems. This tension is exacerbated by the problem of ‘automation bias’, the phenomenon that humans tend to ascribe a certain authority to outcome suggested by an algorithm that leads them to neglect other available information or counter-indications. This means that the increasing use of AI systems in the public administration’s day-to-day decision-making disrupts our models of transparency and accountability. Melanie argues that to meet this challenge, we should rely on established rights under EU law – the right to a reasoned decision and the right to effective judicial protection – and adapt them to the AI context. You can read the full Op-Ed here.

Barbora Budinská’s Op-Ed is entitled ‘Of auctoritas and potestas in the Banking Union: The ECB, the SRB, failing credit institutions and judicial review’. The piece deals with the judgment handed down by the Court of Justice of the EU on 6 May 2021 in joined cases ABLV Bank v ECB and Bernis and Others v ECB (C-551/19 P and C-552/19 P). The Court ruled that assessments made by the European Central Bank (ECB) on whether a credit institution is ‘failing or likely to fail’ are mere preparatory measures in a complex procedure allowing the Single Resolution Board (SRB) to adopt a resolution scheme for the concerned credit institution. As a result, the ‘failing or likely to fail’ assessments cannot be subject to direct judicial review in an action for annulment. However, Barbora points out that with a view to guaranteeing the legality of measures adopted by the ECB and to secure effective legal protection, ‘failing or likely to fail’ assessments—while not open to direct review—the Court must be willing to look indirectly into any potential arguments concerning their illegality in the course of an action brought against final SRB decisions. An action by the ABLV Bank against the SRB is already pending (T-280/18) and we might soon know whether the Court has that willingness. You can read the full Op-Ed here.

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