I. Is there a national act containing a legal definition of Automated Administrative Decisions?

There is no unambiguous definition or categorisation of automated administrative decisions used by Dutch administrative authorities, let alone a Dutch national act containing a legal definition of automated administrative decisions. There are many public-policy documents that contain definitions and/or categorizations of different types of automated systems used by administrative authorities in their decision-making processes. For example, the Guidelines for the application of algorithms by administrative authorities and public information on data-analyses (Richtlijnen voor het toepassen van algoritmen door overheden en publieksvoorlichting over data-analyses), issued by the Ministry of Justice and Security and corresponding to the review standards of the Central Government Audit Service (Auditdienst Rijk), define an algorithm as “a mathematical formula or model executed by a computer to solve a problem, answer a question, make a prediction, take a decision, or inform a decision.” These Guidelines also contain a classification of algorithms, ranging from simple rule-based models to complex case-based systems, such as deep-learning algorithms.

The Guidelines refer to the definition of artificial intelligence (AI) in the Strategic Action Plan for Artificial Intelligence (SAPAI, Strategisch Actieplan voor Artificiële Intelligentie), issued by the Ministry of Economic Affairs and Climate Policy. The SAPAI, in turn, refers to the notion of intelligent behaviour as systems analysing their environment and taking actions—with some degree of autonomy—to achieve specific goals.

Automated administrative decisions can, however, fall within the general definition of a decision (besluit) in Article 1:3(1) of the Dutch General Administrative Law Act (GALA, Algemene wet bestuursrecht), which defines a decision as a written determination by an administrative authority (bestuursorgaan) containing a legal act under public law. The requirement that a decision be in writing is intended to exclude merely oral decisions but not to exclude decisions issued electronically. That legal definition is broad, covering both single-case decisions (beschikkingen) and decisions of general scope (besluiten van algemene strekking), whether informed or made by an automated system.

Which specific GALA rules apply — and which court has jurisdiction to review the matter — depends on the legal nature of the (automated) decision. If the automated decision constitutes a single-case decision, recourse must be made to the administrative courts (bestuursrechter). As part of such a challenge, the administrative court may rule incidentally on the legality of the general binding regulation (algemeen verbindend voorschrift) or of an underlying policy rule (beleidsregel). This incidental review is called exceptieve toetsing. Administrative courts are generally not permitted to review general binding regulations or policy rules directly; challenges to such instruments (or to the use of an automated decision-making process in itself, or to an underlying Act of Parliament) must usually be brought before the civil courts (civiele rechter). The same applies to class-action lawsuits against automated administrative decision-making processes.

This distinction between different types of decisions and corresponding routes for judicial review has resulted in leading Dutch case law on automated administrative decisions coming from both the administrative and civil courts. It means that an automated administrative decision-making process may be challenged before either type of court, depending on the legal nature of the decision and the parties involved.