The AI Act’s gordian knot – regulatory complexity of forbidden practice of “‘real-time’ remote biometric identification systems in publicly accessible spaces for the purposes of law enforcement”

The AI Act having ambitious goals to be the first and the most comprehensive regulation of AI technology in the world at the same is an example of the extremely complex and detailed regulatory approach. Such regulatory complexity may create the risk in itself of the lack of efficiency of adopted rules and important compliance costs on the side of business actors. In the proposed paper, the case of the regulation of prohibited practices will be analyzed. The EU legislator has created a list of such AI applications that are unacceptable from the point of view of the European values. The prohibited practices are listed in the art. 5 of the AIA. In general the prohibitions introduced in this provision are absolute ones. However, exceptions are provided for some of them. A special case is the use of ‘real time remote biometric identification systems in publicly accessible spaces for the purposes of law enforcement’ (RTRBIS). The regulation of this issue seems like a gordian knot combining prohibitions with subsequent exceptions leading to conditional authorization of the use of prohibited practice. The practical application of the indicated provisions leaves doubts about the transparency of the process of applying the law, its certainty and predictability. Furthermore, the possibility granted to Member States to fully or partially waive the prohibition within the limits set in art. 5, or to establish stricter national rules than those resulting from the content of the AIA, may lead to divergent national solutions, which the AIA was intended to prevent. The paper adopts the critical analysis of the regulatory mechanisms and points at shortcomings of adopted approach. Also, the paper will address the issue of relations between the abovementioned rules and the scope of application of the AIA which does not cover defence or national security purposes.