The interplay of the prohibition in Article 5(1)(d) AI Act with the LED and GDPR is relevant when assessing the lawfulness of personal data processing under Union data protection law, such as the GDPR and the LED. In particular, Article 5(1)(d) AI Act imposes a specific prohibition for law enforcement authorities, other public authorities and private entities falling within the scope of the prohibition to assess or predict the risk of a natural person committing a criminal offence, based solely on the profiling of a natural person or on assessing their personality traits and characteristics. With regard to LED, Article 5(1)(d) AI Act is without prejudice to Article 11(3) LED, which prohibits profiling resulting in (direct or indirect) discrimination.
The interplay of the prohibition in Article 5(1)(d) AI Act with Directive (EU) 2016/343 on the presumption of innocenceis also relevant, since both acts are concerned-directly in the case of the Directive and indirectly in the case of the AI Act (see its Recital 42), with the fundamental right to be presumed innocent until proven guilty according to law.144 While the Directive applies from the moment that a person is suspected or accused of having committed a criminal offence,145 the AI Act has a broader scope of application and applies already at the stage of prediction and crime prevention before a formal criminal investigation is opened against a particular person and even in cases when such predictions and risk assessments are made by private actors falling within the scope of Article 5(1)d) AI Act and not by competent law enforcement authorities , including judicial authorities.
Even in cases where the prohibition in Article 5(1) (d) AI Act does not apply, it is important to emphasize that applicable Union and national law remains fully applicable, including in particular data protection, criminal procedural and police law and safeguards that may further restrict or impose additional conditions on the use of individual crime predictive AI systems.