Participation between promise and dead end: Legal limits to public participation in Public-Sector AI development in the EU

Abstract

Public participation in artificial intelligence (AI) development by public administrations is increasingly proposed as a potential silver bullet for mitigating the risks associated with the use of AI in the public sector. This paper examines whether public participation can serve as a viable solution from a doctrinal and practical perspective by analyzing the availability of legal avenues for natural and legal persons to participate in AI development procedures by the EU and member states’ public entities. While the idea is appealing, there are significant obstacles. Notably, EU law currently lacks specific legal frameworks to enable public involvement in the design and development of AI systems by public entities. Neither traditional European administrative law nor the new Artificial Intelligence Act provides effective legal avenues for involving the broader public in AI development in the public sector, posing challenges to implementing meaningful participation. Furthermore, drawing an analogy from environmental law, where public participation often ends up being formalistic and ineffective, suggests that similar outcomes might arise in the context of Public-Sector AI development. Therefore, despite the theoretical advantages of involving the public, this paper argues that, without robust legal structures and meaningful procedural designs, public participation in Public-Sector AI development may ultimately fall short of achieving its promises, proving to be a dead end.