The Bavarian State Government is considering allowing the fully automated issuance of administrative acts even in cases involving discretionary decisions. The plan is to amend Article 10 of the Bavarian Administrative Procedure Act (BayVwVfG) so that an administrative act can be issued entirely by automated systems and through the use of – literally – „artificial intelligence“. This would mean that Bavaria would go beyond the current provisions of federal law:

This is because, to date, the Federal Administrative Procedure Act (Section 35a VwVfG) has also permitted the fully automated issuance of administrative acts, but expressly only in cases where an authority has no discretion or scope for judgement. Unlike North Rhine-Westphalia, Baden-Württemberg and Hesse, for example, Bavaria has not incorporated this provision into state law and, with this draft, is now dispensing with this explicit restriction. Rather, the provision’s open wording would offer a wide range of possible applications when issuing administrative acts. However, the draft does not contain any further details.

From a legal perspective, this move is a delicate one: assuming that the Bavarian State Government uses the term „artificial intelligence“ primarily to refer to the language models currently available, it should be noted that these merely calculate probabilities. However, they lack the necessary capacity for a case-by-case, normatively guided assessment, meaning there is a risk of breaching the principles of legality and democracy: „Where a public authority exercises discretion, it bears responsibility for a transparent, case-by-case assessment. This cannot be replaced by a machine output that is merely likely to be lawful,“ says Rechtsanwalt’s Michael Jessen-Lieberum.  He recommends that businesses and members of the public carefully scrutinise the reasoning behind automated decisions in future, should the draft legislation actually be passed as it stands.  

The state parliament has yet to approve the draft; it is currently with the trade associations for their comments.