The prohibition in Article 5(1)(d) AI Act applies only for the prediction of criminal offences, thus excluding administrative offences from its scope , the prosecution of which is, in principle, less intrusive for the fundamental rights and freedoms of people. For example, a public authority using AI in the context of an administrative investigation to assess the risk of potential offenders of committing minor offences (such as petty traffic offences ) or irregularities in tax, procurement or expenditure processes would not fall within the scope of the prohibition in Article 5(1)(d) AI Act, even in cases where information might be gathered for possible involvement of the natural persons in criminal offences as a result of the administrative investigations and checks.
Whether an offence is administrative or criminal in nature may depend on Union or national law. For offences that are not directly regulated by Union law , the national qualification of the offence is subject to scrutiny by CJEU since ‘criminal offence’ is a concept that has autonomous meaning within the EU law and should be interpreted consistently across Member States . The CJEU has conclu ded, in a different context, that the classification of the offences by the Member States is not conclusive in that respect.142 Relevant criteria used to assess the nature of the offence (criminal or not) may be found in relevant case-law of the CJEU and the European Court of Human Rights (ECtHR).143