The prohibition in Article 5(1)(d) AI Act applies only to individual predictions and risk assessments of natural persons, thus typically excluding crime predictive systems that profile legal entities such as companies or non-governmental organisations. For example,
- A tax or customs authority is using an AI system to analyse large amounts of data on transactions and tax declarations and customs data of companies for assessing the risk of a company committing tax or customs fraud constituting a criminal offence.
- AI systems used to assist customs authorities to help identify situations where an instruction not to send illicit goods to the EU should be issued to legal entities.
At the same time, there may be borderline cases where a natural person acts via a legal entity as a ‘sole tr ader’ or as an independent profession al (e.g., a lawyer) . In such circumstances, the prohibition in Article 5(1)(d) AI Act may apply provided that all conditions are fulfilled , since the AI system profiles a specific natural person and assesses or predicts their risk of committing a criminal offence, even if this is done for purposes in relation to the commercial activity undertaken by the natural person.