The AI practices prohibited by Article 5 AI Act should be considered in relation to the AI systems classified as high-risk in accordance with Article 6 AI Act, in particular those listed in Annex III.30 That is because the use of AI systems classified as high-risk may in some cases qualify as a prohibited practice in specific instances if all conditions under one or more of the prohibitions in Article 5 AI Act are fulfilled. Conversely, most AI systems that fall under an exception from a prohibition listed in Article 5 AI Act will qualify as high-risk. For example, emotion recognition systems, where they do not fulfil the conditions for the prohibition in Article 5(1)(f) AI Act, classify as high-risk AI systems according to Article 6(2) and Annex III, point ( 1)(c) AI Act . Similarly, certain AI-based scoring system, such as those used for credit-scoring or assessing risk in health and life insurance, will be considered high-risk AI systems where they do not fulfil the conditions for the prohibition listed in Article 5(1)(c) AI Act.31 Another example are AI systems evaluating persons and determining if they are entitled to receive essential public assistance benefits and services, such as healthcare services and social security benefits that are classified as high-risk.32 If such systems involve unacceptable social scoring and fulfil the conditions of Article 5(1)(c) AI Act, their placing on the market, putting into service and use will be prohibited in the Union. In such cases, t he risk assessment and management done by the provider and the compliance with the other requirements for high-risk AI systems(e.g., data governance, transparency and human oversight), as well as the deployer’s obligations for appropriate use in accordance with the instructions of use and human oversight (Article 26) and in some cases a fundamental rights impact assessment (Article 27), should help to ensure that the high-risk AI system placed on the market or deployed is lawful and does not constitute a prohibited practice.
Finally, AI systems that are exceptionally not considered high-risk based on Article 6(3) AI Act, despite falling under a high-risk use case of Annex III,may still fall within the scope of the prohibitions of Article 5 AI Act. Article 6(3) AI Act only results in an AI system being considered non-high-risk; it does not exclude such AI system s from the scope of the AI Act and the prohibitions.