EU: AI Act – detailed arrangements on evaluations and proceedings 

 

The EU Commission has published a new draft delegated regulation for the AI Act. 

Article 92(1) of Regulation (EU) 2024/1689 authorises the Commission to evaluate general-purpose artificial intelligence (“AI”) models. Under Article 92(2), the Commission may appoint independent experts to conduct such evaluations on its behalf. Article 92(3) further enables the Commission to request access to a general-purpose AI model undergoing evaluation through application programming interfaces (“APIs”) or other appropriate technical means and tools, including source code. To enhance legal certainty and ensure proportionality, the Commission should specify the technical means, components, and conditions under which providers must grant such access. Detailed rules should also be established regarding the involvement of independent experts where the Commission chooses to appoint them to perform evaluations on its behalf. 

Article 101(1) of Regulation (EU) 2024/1689 empowers the Commission to impose fines on providers of general-purpose AI models for the acts and omissions listed in that provision. To strengthen legal certainty and ensure appropriate procedural safeguards for providers, rules should be laid down concerning the initiation and closure of proceedings that may lead to a decision under Article 101(1). The opening of such proceedings should not affect the Commission’s ability to conduct investigations or request measures before formally initiating proceedings. 

Article 101(2) of Regulation (EU) 2024/1689 requires the Commission, prior to adopting a decision under Article 101(1), to give the provider of the general-purpose AI model concerned—after notifying it of preliminary findings—the opportunity to be heard and to submit supporting evidence. Providers should therefore present their observations on those findings concisely in writing within a time limit set by the Commission. This approach aims to balance the efficiency and effectiveness of the proceedings with the provider’s right to be heard. 

Article 41(2)(b) of the Charter of Fundamental Rights recognises every person’s right of access to their file, subject to the protection of confidentiality and professional and business secrecy. While the addressee of preliminary findings should always receive non-confidential versions of all documents referred to in those findings, the Commission should determine on a case-by-case basis the appropriate procedure for granting additional access to the file. In doing so, the Commission must ensure the protection of business secrets and other confidential information. Persons submitting information or documents during the proceedings may be required to identify any business secrets or confidential information contained therein. Before disclosing such information to the addressee of the preliminary findings, the Commission should assess, for each document, whether the need for disclosure to ensure the effective exercise of the right to be heard outweighs the potential harm that disclosure may cause to the person who provided the information. 

In the interest of legal certainty, limitation periods should be established both for the Commission’s power to impose fines under Article 101(1) of Regulation (EU) 2024/1689 and for the enforcement of such fines. The calculation of these limitation periods should be governed by Council Regulation (EEC, Euratom) No 1182/71.