In April 2021, the European Commission published a proposal for an “Artificial Intelligence Act” (Artificial Intelligence Regulation or “AI Act”). The AI Act is the first regulation of its kind to enact horizontal rules for the development, placement on the market and use of AI solutions within the territory of the EU.
What?
Artificial Intelligence (“AI”) technology will be a central enabler of digital transformation, as it is expected to bring a wide array of economic and societal advantages to a wide range of sectors (both private and public). For example, AI enables automation, smart decision-making, enhanced customer experiences and efficient research.
The AI Act is part of the broader European strategy and package on artificial intelligence, which support the objective of the EU being a global leader in the development of secure, trustworthy and ethical AI. It imposes several new obligations on providers, importers, distributors and users of AI systems, dependent on the level of risk the AI system can cause to human beings.
How?
- The AI Act takes a risk-based approach and introduces a classification of various AI systems. Different risk levels (minimal, low, high and unacceptable risk) come with different requirements and obligations. For example, high-risk AI systems can only be placed on the EU market or put into service if they comply with several strict mandatory requirements (e.g. establishment of a risk management system, quality requirement and transparency requirements), while AI systems presenting unacceptable risks are prohibited.
As an example, providers of high-risk AI systems in the EU should follow the following steps in order to bring their AI system to the market:
- The AI Act bans a number of AI systems that present an unacceptable risk, such as (i) certain social scoring systems for general purposes used by public authorities, (ii) real-time remote biometric identification systems in publicly accessible spaces for the purposes of law enforcement, (iii) AI systems which exploit vulnerable groups of people to materially distort their behaviour and which (are likely to) cause them harm, and (iv) AI systems deploying subliminal techniques beyond a person’s consciousness in order to materially distort a person’s behaviour in a manner that causes or is likely to cause that person or another person physical or psychological harm.
- AI systems intended to interact with natural persons, emotion recognition systems and biometric categorisation systems, and AI systems used to generate or manipulate image, audio or video content will become subject to harmonised transparency rules.
- The AI Act provides for the creation of a new European Artificial Intelligence Board (“EAIB”), composed of representatives from the Member States, the European Data Protection Supervisor and the European Commission. The Board would have the power to issue opinions and interpretive guidance regarding the implementation of legislation, collect and share best practices and develop harmonised technical standards. Similar to national supervisory authorities under the GDPR, national competent AI authorities will supervise the application and implementation of the AI Act. Spain and the Netherlands are already ahead of Belgium, as they have already decided to invest in such a supervisory AI authority.
Who?
The AI Act will have a broad scope of application and will apply to:
- providers placing AI systems on the market or putting them into service in the EU (irrespective of whether those providers are established within the EU or in a third country);
- users of AI systems located within the EU; and
- providers and users of AI systems that are located in a third country, where the output produced by the system is used in the EU.
When?
The proposal for the AI Act is currently being discussed by the co-legislators, the European Parliament and the Council. In the Council, negotiations to find a common position between Member States have started. In November 2021, the Slovenian presidency presented a progress report and a compromise text on discussions held so far within the Council concerning the proposal.
