Article 13 for Biometric AI: Transparency and Instructions for Use

Article 13 concerns the information a provider gives to deployers. It is not a notice duty towards the people a system captures.

• Art. 13(1)
  Sufficiently transparent to interpret the output

  High-risk AI systems must be designed and developed in such a way as to ensure that their operation is sufficiently transparent to enable deployers to interpret a system’s output and use it appropriately. An appropriate type and degree of transparency must be ensured with a view to achieving compliance with the relevant obligations of the provider and deployer set out in Section 3.

• Art. 13(2)
  Instructions for use in a suitable format

  High-risk AI systems must be accompanied by instructions for use in an appropriate digital format or otherwise. They must include concise, complete, correct and clear information that is relevant, accessible and comprehensible to deployers.

• Art. 13(3)(a)–(b)
  Provider identity, capabilities and limitations

  The instructions for use must contain at least the identity and contact details of the provider and, where applicable, of its authorised representative. They must describe the characteristics, capabilities and limitations of performance of the system, including the following. The intended purpose. The level of accuracy, including its metrics, robustness and cybersecurity, against which the system has been tested and validated and which can be expected, and any known and foreseeable circumstances that may have an impact on it. Any known or foreseeable circumstance that may lead to risks to health and safety or fundamental rights. Where applicable, the technical capabilities and characteristics of the system to provide information that is relevant to explain its output. When appropriate, its performance regarding specific persons or groups of persons on which the system is intended to be used. When appropriate, specifications for the input data, or other relevant information on the training, validation and testing data sets used. Where applicable, information to enable deployers to interpret the output and use it appropriately.

• Art. 13(3)(c)–(f)
  Changes, human oversight, resources and logs

  The instructions for use must also contain the following. The changes to the system and its performance which have been pre-determined by the provider at the moment of the initial conformity assessment, if any. The human oversight measures referred to in Article 14, including the technical measures put in place to facilitate the interpretation of the outputs by deployers. The computational and hardware resources needed, the expected lifetime of the system and any necessary maintenance and care measures, including their frequency, to ensure the proper functioning of the system, including as regards software updates. Where relevant, a description of the mechanisms included within the system that allow deployers to properly collect, store and interpret the logs in accordance with Article 12.

Article 13 binds high-risk AI systems only. The rows below show where biometric AI is high-risk, who is bound, and where duties towards affected persons sit.

• Annex III has a “Biometrics” area, limited to three kinds of systems

  Annex III has an area headed “Biometrics”, in so far as the use is permitted under relevant Union or national law. The area is limited to points 1(a) to 1(c); the Act has no wider biometrics regime. This site’s word “biometrics” means these systems. Point 1(a) covers remote biometric identification systems. It does not include AI systems intended to be used for biometric verification the sole purpose of which is to confirm that a specific natural person is the person he or she claims to be. Point 1(b) covers AI systems intended to be used for biometric categorisation, according to sensitive or protected attributes or characteristics based on the inference of those attributes or characteristics. Point 1(c) covers AI systems intended to be used for emotion recognition. A remote biometric identification system identifies natural persons without their active involvement, typically at a distance, by comparing a person’s biometric data with the biometric data in a reference database (Article 3(41)). Biometric verification is automated one-to-one verification, including authentication, of the identity of natural persons by comparing their biometric data to previously provided biometric data (Article 3(36)). A biometric system that point 1 does not list is high-risk only if another point of Annex III or Annex I covers it.

• Article 6(3) can take a system out of Annex III

  A system under Annex III point 1 is high-risk under Article 6(2). Under Article 6(3) it is not high-risk if it does not pose a significant risk of harm to health, safety or fundamental rights. That includes not materially influencing the outcome of decision making. The Act applies this exception where any of the following conditions is fulfilled (Article 6(3), points (a) to (d)). The system is intended to perform a narrow procedural task. Or it is intended to improve the result of a previously completed human activity. Or it is intended to detect decision-making patterns or deviations from prior decision-making patterns and is not meant to replace or influence the previously completed human assessment, without proper human review. Or it is intended to perform a preparatory task to an assessment relevant for the use cases listed in Annex III. How these conditions combine with the significant-risk test is a question for counsel. The system is always high-risk where it performs profiling of natural persons. Profiling is defined by Article 4(4) GDPR (Article 3(52)). Whether a given biometric system performs profiling is also a question for counsel. A provider that relies on the exception documents its assessment before the system is placed on the market or put into service. It must also register the system (Article 6(4), Article 49(2)). Separately, point 1(a) itself excludes AI systems intended to be used for biometric verification the sole purpose of which is to confirm that a specific natural person is the person he or she claims to be.

• Provider and deployer

  The provider develops an AI system, or has it developed, and places it on the market or puts it into service under its own name or trademark (Article 3(3)). Putting into service includes supply for the provider’s own use (Article 3(11)). A business or public authority that develops a biometric system and puts it into service under its own name is therefore a provider. A business or public authority that uses a system under its authority is a deployer (Article 3(4)). A deployer becomes the provider in three cases. It puts its name or trademark on a high-risk system already on the market, without prejudice to contractual arrangements stipulating that the obligations are otherwise allocated. It makes a substantial modification to such a system that leaves it high-risk. Or it changes the intended purpose of a non-high-risk system so that it becomes high-risk (Article 25(1)). The provider that initially placed the system on the market or put it into service is then no longer considered the provider of that specific system, and must closely cooperate with the new provider (Article 25(2)). This does not apply where the initial provider clearly specified that its system is not to be changed into a high-risk AI system.

• Duties to inform affected persons are in other Articles

  Article 13 concerns information to deployers. It sets no rule on signs, notices or on-screen messages for people captured by a biometric system. Deployers of high-risk AI systems referred to in Annex III that make decisions or assist in making decisions related to natural persons inform those persons that they are subject to the use of the system (Article 26(11)). Deployers of an emotion recognition system or a biometric categorisation system inform the natural persons exposed to it of the operation of the system, and process the personal data in accordance with data protection law (Article 50(3)). That obligation does not apply to such systems that are permitted by law to detect, prevent or investigate criminal offences, subject to appropriate safeguards for the rights and freedoms of third parties and in accordance with Union law. Union data protection law continues to apply (Article 2(7)).

• Dates

  The requirements for these Annex III uses apply from 2 December 2027 (Article 113, point (c)(i)). A system placed on the market or put into service before that date is covered only if its design changes significantly afterwards. In any case, providers and deployers of high-risk systems intended to be used by public authorities must take the necessary steps to comply by 2 August 2030 (Article 111(2)). This rule does not cover the systems referred to in Article 111(1).

• Fines

  Providers must ensure that their high-risk systems meet the requirements of Section 2 of Chapter III, which includes Articles 9 to 15 (Article 16, point (a)). A breach of the provider obligations in Article 16 or of the deployer obligations in Article 26 can be fined. The fine is up to EUR 15 million or, for an undertaking, up to 3% of its total worldwide annual turnover for the preceding financial year, whichever is higher (Article 99(4), points (a) and (e)). For SMEs, including start-ups, each fine is up to whichever of the two is lower (Article 99(6)). The same applies to small mid-cap enterprises (Article 3(14b), Article 99(6a)). Each Member State lays down rules on to what extent administrative fines may be imposed on public authorities and bodies established in that Member State (Article 99(8)).

• Reach and limits of the Act

  The Act applies to providers and deployers established or located in a third country where the output produced by the AI system is used in the Union (Article 2(1), point (c)). It does not apply to areas outside the scope of Union law, and it does not affect the competences of the Member States concerning national security (Article 2(3)). The Act does not apply to AI systems or AI models, including their output, specifically developed and put into service for the sole purpose of scientific research and development (Article 2(6)). It does not apply to research, testing or development activity before a system is placed on the market or put into service. Testing in real-world conditions is not covered by that exclusion (Article 2(8)). AI systems released under free and open-source licences are outside the Act. That exclusion does not apply if they are placed on the market or put into service as high-risk AI systems, or if they fall under Article 5 or 50 (Article 2(12)). It does not apply to AI systems where and in so far they are placed on the market, put into service, or used with or without modification exclusively for military, defence or national security purposes, regardless of the type of entity carrying out those activities (Article 2(3)). It does not apply to public authorities in a third country or to international organisations falling within its scope under Article 2(1), where they use AI systems in the framework of international cooperation or agreements for law enforcement and judicial cooperation with the Union or with one or more Member States, provided that the third country or international organisation provides adequate safeguards with respect to the protection of fundamental rights and freedoms of individuals (Article 2(4)). It does not apply to the obligations of deployers who are natural persons using AI systems in the course of a purely personal non-professional activity (Article 2(10)). Union law on the protection of personal data, privacy and the confidentiality of communications applies to personal data processed in connection with the rights and obligations in the Act. Without prejudice to Article 4a and Article 59, the Act does not affect Regulation (EU) 2016/679, Regulation (EU) 2018/1725, Directive 2002/58/EC or Directive (EU) 2016/680 (Article 2(7)).

• No biometric accuracy values or list of groups

  Article 13(3) requires the instructions to state the level of accuracy and its metrics and, when appropriate, performance regarding specific persons or groups of persons. It names no accuracy value, metric or list of groups for biometric systems. The Act itself names no standard. High-risk systems that conform to harmonised standards whose references are published in the Official Journal are presumed to conform to the requirements of Section 2, to the extent those standards cover them (Article 40(1)). The Commission is to develop guidelines on the application of the requirements and obligations in Articles 8 to 15, 25 and 26 (Article 96(1), point (a)).

• Example: a guide for the people who verify matches

  Example, not an Act requirement: for the persons who must verify a match under Article 14(5), the provider could add a short guide on how to read a match and which circumstances make it less reliable.

• Example: version the instructions

  Example, not an Act requirement: a provider could version the instructions for use and record which version went with which system release, so that a deployer can check what applied at the time of a given use.

• EU AI Act Article 13: Transparency and Instructions for Use

  Article 13 for all sectors: the requirements, dates and fines.

• EU AI Act Compliance for Biometrics

  The biometrics overview: what the Act covers, what it prohibits and the biometric-specific rules.

• Article 14 for Biometric AI: Human Oversight

  Biometric AI and Article 14: human oversight and the two-person check for remote identification.

• EU AI Act Article 15: Accuracy, Robustness and Cybersecurity

  Article 15 for all sectors: the accuracy levels that Article 13(3) asks providers to declare.