The Bosco Case Before the Spanish Courts: A Missed Opportunity

ABSTRACT This article analyzes the legal trajectory of the Bosco case, a landmark dispute in Spain regarding algorithmic transparency. The conflict began when the Civio Foundation sought access to the source code of ‘Bosco,’ a computer application used by the Spanish administration to automate the verification of requirements for the social electricity tariff. The author argues that the case has been surrounded by a ‘dystopian’ public mood that confuses simple automated software with complex Artificial Intelligence (AI). Huergo Lora emphasizes that Bosco is merely an instrumental tool that applies strictly regulated legal criteria; it does not exercise discretion or ‘decide’ rights, but rather automates calculations similar to a tax calculator. Therefore, he contends that transparency should focus on the legality of the administrative result rather than the code itself. While the Supreme Court ultimately ruled in favor of Civio, granting access to the source code, the author criticizes the reasoning. He notes that the ruling is highly specific to the parties involved and relies on a ‘balancing of interests’ that reduces legal predictability. Finally, he warns that imposing excessive transparency requirements on non-AI, rule- based systems could hinder administrative efficiency without providing actual legal benefits to citizens.

KEYWORDS Algorithmic transparency - Source code - Access to public information - Cybersecurity - Intellectual property

TABLE OF CONTENTS 1. Introduction. – 2. The Origin: Two Rulings Going Against Public Opinion. – 2.1. The Social Tariff and the Bosco App. – 2.2. The Case Before the Courts. – 2.3. The Two Initial Judgments Recognise That the Bosco Application Is Instrumental and That It Is Not Necessary to Understand How It Works to Determine Whether a Citizen Is Entitled to the Social Tariff. – 2.4. The Ratio Decidendi of the Judgments: Copyright and Cybersecurity. – 3. The Supreme Court’s Ruling. – 3.1. The Change in Approach: Recognition of the Right of Access. – 3.2. The Functions of Bosco. – 3.3. On the Statement of Reasons Behind Decisions Applying the Bosco System. – 4. Some Conclusions. – 4.1. Forgetting That the Algorithm Is (Merely) a Tool. – 4.2. Algorithms Such as Bosco Are Not AI Within the Meaning of AI Act. – 4.3. The Need to Distinguish Between Different Types of Algorithms. – 4.4. Contrast with Other Rulings on the Use of ‘Strong’ AI.