In Denmark, new legislation is designed to be digitally compatible from the very beginning.. The new legislative concept is named “digitally ready legislation” denoting legislation that is ready to be transformed into subsequent digital requirements by the use of e.g. Artificial Intelligence (AI) systems. The connotation is positive and “digital readiness” has a catchy ring to it. The legislative framework of public administration is born to be digital. The starting point for the civil service’s drafting of legislation is an explicit and persuasive political digital wish. The new technique is characterized, however, by a vague definition of digital solutions. No legal definition exits which in itself is a challenge. It might be AI solutions.

The pro-active digital focus at the phase of hatching of regulation may have a price, however, as far as the rule of law is concerned reducing the flexibility and “elastic quality” of regulatory templates. When the EU regulation of AI (adopted by the European Parliament, 13 March 2024) is transformed into a driving force, the safe guards will be a importance not only at the administrative but at the legislative level. The regulation is broadly phrased and it will arguably take time to decode or translate into feasible standards. This contribution sheds light on principles of digitally pre-born legislation and against that backdrop, the ambition is discuss various rule of law scenarios. Is an artificial rule of law an option? It is a challenge to strike a fair balance between regulation with an open-end and discretionary design or with a close-end design based on regularity and objective criteria. This debate is so far missing in Danish law. Although the concept of digitally ready legislation has advantages, and although Denmark ranks in the top end of the digital class in Europe, the ongoing digital reform comprises a number of problems. Arguably, the reform may as a whole represent a drawback towards a more simplified legal geometry to the detriment of the diversity of citizens and enterprises subject to Danish law. The rule of law concept appears to find itself in a squeezed position.

The contribution will as a specific focus discuss the new EU regulation on AI from a Danish perspective. The overall question is how the regulation will be transformed into the Danish context which represents – at least to Danes – a well-functioning and highly digitized public administration. Potentially, the contribution may claim that even top-of-the-class-pupils in the EU might face a huge transformation with AI as the new leading star in particular in an assertive political environment that embraces digital solutions with euphoria. Artificial intelligence is a party bus arriving at the gate of Danish public administration, artificial rule of law is a party killer.

In Western democracies, it’s taken for granted that transparency and the right to access information held by a public administration is a crucial part of an open and democratic government. It’s also one of the EU’s key principles. There are therefore only a limited amount of exceptions on the basis of which access to information can be denied and these exceptions must in turn be interpreted restrictively. A legitimate reason to refuse (partial) access to information is when divulging this information might infringe on the privacy of an individual. With the entry into force of the General Data Protection Regulation (GDPR) in 2018, the ‘privacy exception’ became even more prominent and perhaps more readily and more broadly invoked than strictly necessary. On the other hand, public administrations are also today more aware than ever of their responsibilities to comply with the data protection rules and the threat of being fined by the Data Protection Authority is not an imaginary one.

In this paper we will explore the tensions which can sometimes arise between the duty of a public administration to grant access to information and the duty of that administration to protect personal information of individual citizens. Similar tensions would probably occur in many countries. That’s why we do not limit our research to Belgian public administrations, but we’ll take a look abroad (e.g. one or more neighboring countries) without turning it into an exhaustive comparative legal study which would not be realistic within the boundaries of this paper.

Starting from the given framework of transparency on the one hand and data protection on the other hand, we will deal with some questions in this paper. First, by examining and discussing a number of recent decisions of the Access to Administrative Documents Committees as well as the decisions and recommendations of the Data Protection Authority, we wish to bring into focus the often delicate balancing act which administrations have to perform when handling and granting a request for information. For example, as in one particular case, when a citizen requests access to complaints made by other citizens for the sole purpose of strengthening his one complaint he has yet to file. Another question which will be discussed in the paper, is whether these aforementioned tensions and the obligation to constantly ‘redact’ information to exclude personal data doesn’t lead to an excessive administrative burden on especially smaller administrations. Finally, this paper also examines whether administrations sometimes use the privacy exception or the data protection rules too quickly as a(n) (false) excuse to not comply with a legitimate request for information.

The participatory model underwent a transformation in Spain in 2015 with the enactment of the latest reform to the general law on administrative procedure. The law reinstated the regulation on the formulation of regulations and, in general, the rules emanating from governmental sources. In this context, the incorporation of public consultations as a mechanism for early participation represented the most notable and innovative aspect of the reform, influenced by the principles of better regulation.

Despite this, the implementation of this point of the law has not been satisfactory. This has generated deep insecurity about its legal nature, its enforceability, and the consequences of its omission or incorrect implementation. The aim of this study is to analyse the responses given by doctrine and jurisprudence to the numerous doubts and uncertainties surrounding the implementation of this law. The factors that have contributed to the observed drift will be identified, with particular emphasis on the role of culture and administrative tradition. Conversely, the present study will examine the challenges and inconsistencies inherent in the proceduralisation of rights pertaining to participation and access to information in Spanish legislation, as a consequence of constraints imposed by a multi-level legislator.

In a more constructive vein, the concluding section will present a theoretical framework of results that can facilitate a more nuanced and informed understanding of the institution in the context of recent advances in deliberative democracy, the democratic legitimation of administration, and knowledge generation within the complex framework of contemporary administrative law as a science of decision. Furthermore, it would be beneficial to consider the evolution of soft law within this model and the comparative analysis of sectoral public consultations, primarily within the context of the European Union.

Over the last few decades, the scope of administrative justice has evolved, allowing access to justice in an increasing number of administrative disputes. At the organisational level, many countries have adopted the dualist model and established administrative courts. Procedural codes have also been adopted.

In terms of competences, however, there are still very different models and thus great differences in the scope of judicial review. One such issue is whether an enumerative model is still used (as e.g. in Austria and Poland), or whether, following the German model, a general rule opens the way for all types of administrative action (eg. Spain, Hungary). In between, there are also several solutions in the different member states of the EU. Often, these models arrive at the same outcome and can grant a seamless protection against administrative action, but at other times, this is not the case.

Regarding the scope of judicial review, another core topic is that of state liability, where many states adhere to the German model, leaving these disputes in the hands of civil courts, while the more progressive states follow the French model, which is fully dualistic. As former raises more and more doubts on the effectiveness of judicial protection, as people sueing the state have to initiate two successive judicial procedures, which is costly and also lenthy, national legislature has to reconsider this distribution of competences and search for improvements.

The presentation aims to explore these trends in the regulation of the scope of judicial review and show up differences in order to identify best practices that really enhance effective legal protection. It also aims at analysing the question of effective legal protection regarding the models of state liabilty claims.