According to Article 2(3) AI Act, the AI Act does not apply to areas outside the scope of Union law, and should not, in any event, affect the competences of the Member States concerning national security, regardless of the type of entity entrusted by the Member States with carrying out tasks in relat ion to those competences. The AI Act expressly excludes from its scope AI systems that 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.’ Whether that exclusion applies therefore depends on the purposes or the uses of the AI system, not the entities carrying out the activities with that system, which may also cover private operators entrusted by the Member States with carrying out tasks in relation to those competences.
According to the CJEU, the term ‘national security’ refers to ‘the primary interest in protecting the essential functions of the State and the fundamental interests of society and encompasses the prevention and punishment of activities capable of ser iously destabilising the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the Stat e itself, such as terrorist activities .’ 17 National security does not cover , for example activities relating to road safety,18 or the organisation or administration of justice.19 As stated by the CJEU, ‘it is for the Member States to define their essential security interests and to adopt appropriate measures to ensure their internal and external security, […] a national measure […]taken for the purpose of protecting national security cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law.’20
For the exclusion in Article 2(3), second subparagraph, AI Act to apply, the AI system must be placed on the market, put into service or used exclusively for military, defence or national security purposes. Recital 2 4 AI Act further clarifies how the notion ‘exclusively’should be interpreted and when an AI system used for such purposes may nevertheless fall within the scope of the AI Act. For example, if an AI system placed on the market, put into service or used for military, defence or national security purposes is used (temporarily or permanently) for other purposes, such as for civilian or humanitarian purposes, law enforcement or publi c security purposes, that system will fall within the scope of the AI Act. In that case, the entity using the AI system for the other purposes should ensure compliance of the AI system with the AI Act, unless the system already complies with that act, which has to be verified before such use.
Furthermore, recital 24 AI Act clarifies that AI systems placed on the market or put into service for an excluded purpose, namely military, defence or national security, and for one or more non-excluded purposes, such as civilian or law enforcement purposes (so called ‘ dual use ’ systems), fall within the scope of the AI Act. Providers of those systems should ensure that they comply with the requirements in the AI Act. For example, if a company offers a RBI system for v arious purposes, including law enforcement and national security, that company is the provider of that ‘dual use’ system and must ensure its compliance with the requirements in the AI Act.
However, the fact that an AI system may fall within the scope of the AI Act should not affect the ability of entities carrying out national security, defence and military activities to use that system for national security, military and defence purposes, regardless of the type of entity carrying out those activities.21 For example, if a national security agency or a private operator is tasked by a national intelligence agency to use real-time RBI systems for national security purposes (such as to gather intelligence), such use would be excluded from the scope of the AI Act.
The clear delineation of the national security exclusion is particularly important where AI systems are placed on the market, put into service or used for law enforcement purposes that fall within the scope of the AI Act. This is relevant for the prohibitions regarding individual crime predictions and assessments and regarding the use of real-time RBI systems for law enforcement purposes laid down in Article 5(1)(d) and (h) AI Act respectively. Police and other law enforcement authorities are taske d with the prevention, detection, investigation and prosecution of criminal offences or the execution of criminal penalties, including safeguarding against and preventing threats to public security .22 Whenever AI systems are used for such purposes, they wi ll fall within the scope of the AI Act.
The activities of Europol and other Union security agencies, such as Frontex, fall within the scope of the AI Act.