Resumen de Limits to discretion and automated risk assessments in EU border control: Recognising the political in the technical

Amanda Musco Eklund

• This article analyses how the automation of border control challenges the rule of law requirementon sufficient limits to discretion by using the idea expressed by the Court of Justice of the EuropeanUnion (CJEU) non-delegation doctrine that it is possible to make a clear distinction between techni-cally complex assessments and political discretion. To illustrate these challenges, the article uses theexamples of the European Travel Information and Authorisation System (ETIAS) and the conferral ofdiscretionary powers to EU agency Frontex to establish pre-determined risk criteria. The articleargues that not recognising the inherent political aspects of exercising technical powers leads toinsufficient limits to discretionary powers in the context of automated risk assessments. Beyondraising serious rule of law concerns of arbitrary exercise of power, the idea that technical assess-ments and policy choices can be clearly separated enables ‘algorithmic discretion’ as a new form ofadministrative discretion.