The Court of Justice’s broad interpretation of the notion of “automated decision-making”: a broader perspective but still fragile protections for fundamental rights

Abstract

More and more common artifacts are used not to facilitate the completion of an action, activity or operation that we have already planned, but rather to make decisions. The compu-decisional delegation varies significantly depending on the complexity of the decisions to be made, the level of automation and the corresponding degree of human intervention. The protections provided by the European Regulation on the processing of personal data focus precisely on the relationship between the degree of automation and human intervention. However, to subordinate legal protections to an investigation into the complexity of the different dynamics that characterize automated decision-making processes, in search of evidence on the prevalence of one or the other factor in contexts formed by complex networks of inputs, algorithms, data and human interventions, it may lower the legal protections. The recent judgment of the Court of Justice (C-634/21, Schufa), while offering an extensive interpretation of the notion of automated decision, allows us to highlight, once again, the fragility of the protections built for fundamental rights.