"The Article 49(2) transparency safeguard has an essential function and removing it, as proposed in the Commission’s AI Omnibus, will create a gaping loophole and undermine the core functioning of the AI Act.
Under Article 6(3), providers of AI systems which match the list of high-risk use cases in Annex III may decide that their system does not in fact pose a significant risk and unilaterally exempt themselves from all obligations for high-risk AI systems.
To stop the abuse of this derogation mechanism, providers who do exempt themselves are required by the Article 49(2) transparency safeguard to register their derogation in a publicly viewable database. Removing this transparency safeguard would have three key negative consequences:
- Market surveillance authorities will have no overview of how many companies exempt themselves from the high-risk requirements, and we have no way of tracking discrepancies across member states (e.g. that in Country A there were 3000 exemptions but only 6 in Country B), leading to potential lack of harmonisation across the Single Market.
- Providers are given a completely opaque and unaccountable way to opt out of the obligations for high-risk AI systems, creating a perverse incentive to sidestep the requirements of the AI Act. Importantly, this perverse incentive will work to the detriment of responsible providers who truly wish to develop responsible, trustworthy systems in the high-risk categories, allowing them to be undercut in the market.
- The public, including civil society organisations, will have no way of knowing which providers have exempted themselves from obligations, despite the fact that their systems fall under the high-risk categories in Annex III. This removes a key element of transparency, undermines public trust, and deprives those affected by AI systems of necessary information to challenge an exemption."
https://www.accessnow.org/press-release/a-call-to-eu-legislators-protect-transparency-safeguard-in-ai-act/
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