Governing by Proxies: Indicators and the Transformation of Rights in the EU

In this piece for the Dublin City University Law & Tech blog, author Cesaria Claudia Losito (Bari Aldo Moro University) explores how the European Union’s expanding regulatory framework on data and artificial intelligence—anchored in instruments like the AI Act and the broader European Data Strategy—coexists with a quieter but significant shift in public administration. Decision-making is increasingly structured through indicators, scoring systems, and data models that translate complex legal and social realities into measurable variables, raising deeper questions about how law itself is evolving in a data-driven environment.

The article argues that EU digital regulation not only constrains AI but actively promotes data-driven governance, encouraging public authorities to integrate datasets and analytics into decision-making. As a result, traditionally interpretive legal categories—such as vulnerability or risk—are converted into structured data inputs. Evidence from regulatory practice, including opinions by the European Data Protection Board and European Data Protection Supervisor, highlights the difficulty of consistently classifying high-risk AI systems, illustrating the broader challenge of translating open-ended legal concepts into stable, operational categories.

Losito emphasizes that this translation is not merely technical but transformative: indicators begin to function as proxies for legal judgment. Within frameworks like the AI Act, fundamental rights are operationalized through risk-based classifications that determine when safeguards apply. Rather than being directly invoked in individual cases, rights are mediated through anticipatory assessments and proxy-based determinations, shifting their role from guiding legal reasoning to being embedded within technical and classificatory systems.

Finally, the piece examines the implications of this “governing by proxies” model for public law. In practice—across areas like welfare allocation, tax enforcement, and urban governance—indicators increasingly shape access to rights and public services. While legal frameworks remain intact, decision-making is effectively relocated to the design and application of these metrics. This creates challenges for transparency, accountability, and contestability, prompting the need to re-anchor data-driven tools within robust legal safeguards so that fundamental rights remain meaningful even as their practical application is mediated through data and indicators…

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