EU: Dangerous loophole in the AI Act must be closed to protect rights


Almost 120 civil society organisations, including Statewatch, are calling on MEPs to close a massive loophole in the proposed Artificial Intelligence Act introduced under pressure from big tech lobbyists. Without changes, the law will allow developers of AI systems to decide whether or not the systems they produce should be considered "high-risk" or not - an obvious invitation for them to decide that they are not, in order to avoid the extra safeguards that the Act should impose.

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Image: Ben Tilley, CC BY 2.0

The statement was coordinated by European Digital Rights.

EU legislators must close dangerous loophole in AI Act

The European Union is entering the final stage of negotiations on its Artificial Intelligence Act (AI Act), but Big Tech and other industry players have lobbied to introduce a major loophole to the high-risk classification process, undermining the entire legislation. We call on EU legislators to remove this loophole and maintain a high level of protection in the AI Act.

The EU AI Act has the potential to improve protections for people impacted by AI systems. In its original form, it outlined a list of ‘high-risk uses’ of AI, including AI systems used to monitor students, to assess consumers’ creditworthiness, to evaluate job-seekers, and to determine who gets access to welfare benefits.

The legislation requires developers and deployers of such ‘high-risk’ AI to ensure that their systems are safe, free from discriminatory bias, and to provide publicly accessible information about how their systems work. However, these benefits will be undermined by a dangerous loophole introduced into the high-risk classification process in Article 6.

In the original draft from the European Commission, an AI system was considered ‘high risk’ if it was to be used for one of the high-risk purposes listed in Annex III. However, the Council and the European Parliament have introduced a loophole that would allow developers of these systems decide themselves if they believe the system is ‘high-risk’.i The same company that would be subject to the law is given the power to unilaterally decide whether or not it should apply to them.

These changes to Article 6 must be rejected and the European Commission’s original risk- classification process must be restored. There must be an objective, coherent and legally certain process to determine which AI systems are ‘high-risk’ in the AI act.

If the changes to Article 6 are not reversed, the AI Act will enable AI developers to decide to exempt themselves from all substantive rules for high-risk systems. The AI Act would:

  • Introduce high legal uncertainty as to which systems are considered ‘high risk’;
  • Lead to fragmentation of the EU single market, with different interpretations of what constitutes ‘high-risk’ across Member States;
  • Result in Member State authorities facing severe challenges to enforce the legislation, without enough resources to monitor developers’ self-assessment sufficiently;
  • Allow unscrupulous developers to avoid the basic requirements of the law that are meant to make their systems safer and more This would put responsible AI developers at a disadvantage.

We urge lawmakers to reverse these changes and restore the Commission’s original language in Article 6. The AI Act must prioritise the rights of people affected by AI systems and ensure that AI development and use is both accountable and transparent.ii


  1. Access Now
  2. BEUC – The European Consumer Organisation
  3. European Digital Rights (EDRi)
  4. Access Info Europe
  5. AlgoRace
  6. Algorights
  7. AlgorithmWatch
  8. All Faiths and None
  9. All Out
  10. Alternatif Bilisim (AiA-Alternative Informatics Association)
  11. Amnesty International
  12. ARSIS Association for the Social Support of Youth
  13. Article 19
  14. Asia Indigenous Peoples Pact
  15. Aspiration
  16. Association for Legal Studies on Immigration (ASGI)
  17. Association Konekt
  18. Balkan Civil Society Development Network
  19. Bits of Freedom
  20. Bulgarian center for Not-for-Profit Law (BCNL)
  21. Center for AI and Digital Policy (CAIDP)
  22. Chaos Computer Club
  23. Civil Rights Defenders
  25. CNVOS Slovenia
  26. Coalizione Italiana Libertà e i Diritti civili
  27. Comisión General Justicia y Paz de España
  28. Controle Alt Delete
  29. Corporate Europe Observatory (CEO)
  30. D64 - Zentrum für Digitalen Fortschritt V.
  31. DanChurchAid (DCA)
  32. Danes je nov dan, Inštitut za druga vprašanja
  33. Defend Democracy
  34. Democracy Development Foundation Armenia
  35. Digitalcourage
  36. Digital Security Lab Ukraine
  37. Digitale Gesellschaft
  38. Digitalfems
  39. DonesTech
  40. dTest, p.s.
  41. Eticas
  42. EuroMed Rights
  43. European Anti-Poverty Network (EAPN)
  44. European Center for Not-for-Profit Law
  45. European Civic Forum
  46. European Movement Italy
  47. European Network Against Racism (ENAR)
  48. European Network on Statelessness
  49. Fair Trials
  50. Fair Vote UK
  51. Fundación CIVES
  52. Federación de Consumidores y Usuarios CECU
  53. Federación de Sindicatos de Periodistas (FeSP)
  54. Federation of  German  Consumer  Organisations  (Verbraucherzentrale  Bundesverband  – vzbv)
  55. FIPR
  56. Fritidsodlingens Riksorganisation
  57. Gong
  58. Greek Forum of Refugees
  59. Health Action International
  60. Homo Digitalis
  61. Hungarian Civil Liberties Union
  62. I Have Rights
  63. IDAY Liberia Coalition
  64. Institute Circle
  65. Institute for Strategic Dialogue (ISD)
  66. Irish Council for Civil Liberties
  67. IT-Pol
  68. Iuridicum Remedium
  69. KEPKA- Consumers Protection Center
  70. Kif Kif vzw
  71. KOK German NGO Network against Trafficking in Human Beings
  72. Konsumentvägladarnas Förening
  73. Kosovar Civil Society Foundation (KCSF)
  75. La Strada International
  76. cat
  77. LDH (Ligue des droits de l'Homme)
  78. Legal Centre Lesvos
  79. Liberty
  80. Ligue des droits humains
  81. Metamorphosis Foundation
  82. Migrant Tales
  83. Mobile Info Team
  84. Moje Państwo Foundation
  85. National Federation of Polish NGOs (OFOP)
  86. National NGO Coalition
  87. New Europeans International
  88. Norwegian Consumer Council
  89. Novact
  91. Ökotárs - Hungarian Environmental Partnership Foundation
  92. Open Knowledge Foundation Germany
  93. Panoptykon Foundation
  94. Partners Albania for Change and Development
  95. PIC - Legal Center for the Protection of Human Rights and the Environment
  96. Platform for International Cooperation on Undocumented Migrants (PICUM)
  97. Polish Women's Strike Foundation
  98. Politiscope
  99. Privacy First
  100. Privacy International
  101. Privacy Network
  102. PRO, Pensionärernas riksorganisation
  103. Promo-LEX Association
  104. Prostitution Information Center
  105. Protection International
  106. Red en Defensa de los Derechos Digitales
  108. SKPF Pensionärerna
  109. SOLIDAR & SOLIDAR Foundation
  110. Spiralis
  111. Statewatch
  112. Stichting LOS
  113. Superbloom (previously known as Simply Secure)
  114. Swedish Asthma and Allergy Association
  116. Symbiosis - Council of Europe School of Political Studies in Greece
  117. The Swedish Consumers' Association
  118. Wikimedia Deutschland V.

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Further reading

12 July 2023

EU: Civil society calls for rights to be prioritised in secret AI Act "trilogue" negotiations

Secret negotiations between the Council of the EU, European Parliament and European Commission on the Artificial Intelligence Act have begun, more than two years after the legislation was proposed. A statement signed by more than 150 civil society organisations, including Statewatch, calls for fundamental rights to be put at the centre of the talks.

17 May 2023

Open Letter to the Spanish Presidency of the Council of the European Union: Ensuring the protection of fundamental rights on the AI Act

With the European Parliament and Council of the EU heading for secret trilogue negotiations on the Artificial Intelligence Act, an open letter signed by 61 organisations - including Statewatch - calls on the Spanish Presidency of the Council to make amendments to the proposal that will ensure the protection of fundamental rights.


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