Article 74 - Market surveillance and control of AI systems in the Union market

Cross-References

Internal (AI Act)

• Article 1 - Subject Matter
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Related Regulations

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Supporting Recitals

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Related Recitals

Recital (156)

Official Text

1.

Regulation (EU) 2019/1020 shall apply to AI systems covered by this Regulation. For the purposes of the effective

enforcement of this Regulation:

(a) any reference to an economic operator under Regulation (EU) 2019/1020 shall be understood as including all operators

identified in Article 2(1) of this Regulation;

(b) any reference to a product under Regulation (EU) 2019/1020 shall be understood as including all AI systems falling

within the scope of this Regulation.

2.

As part of their reporting obligations under Article 34(4) of Regulation (EU) 2019/1020, the market surveillance

authorities shall report annually to the Commission and relevant national competition authorities any information

identified in the course of market surveillance activities that may be of potential interest for the application of Union law on

competition rules. They shall also annually report to the Commission about the use of prohibited practices that occurred

during that year and about the measures taken.

3.

For high-risk AI systems related to products covered by the Union harmonisation legislation listed in Section A of

Annex I, the market surveillance authority for the purposes of this Regulation shall be the authority responsible for market

surveillance activities designated under those legal acts.

By derogation from the first subparagraph, and in appropriate circumstances, Member States may designate another

relevant authority to act as a market surveillance authority, provided they ensure coordination with the relevant sectoral

market surveillance authorities responsible for the enforcement of the Union harmonisation legislation listed in Annex I.

4.

The procedures referred to in Articles 79 to 83 of this Regulation shall not apply to AI systems related to products

covered by the Union harmonisation legislation listed in section A of Annex I, where such legal acts already provide for

procedures ensuring an equivalent level of protection and having the same objective. In such cases, the relevant sectoral

procedures shall apply instead.

5.

Without prejudice to the powers of market surveillance authorities under Article 14 of Regulation (EU) 2019/1020,

for the purpose of ensuring the effective enforcement of this Regulation, market surveillance authorities may exercise the

powers referred to in Article 14(4), points (d) and (j), of that Regulation remotely, as appropriate.

6.

For high-risk AI systems placed on the market, put into service, or used by financial institutions regulated by Union

financial services law, the market surveillance authority for the purposes of this Regulation shall be the relevant national

authority responsible for the financial supervision of those institutions under that legislation in so far as the placing on the

market, putting into service, or the use of the AI system is in direct connection with the provision of those financial

services.

7.

By way of derogation from paragraph 6, in appropriate circumstances, and provided that coordination is ensured,

another relevant authority may be identified by the Member State as market surveillance authority for the purposes of this

Regulation.

National market surveillance authorities supervising regulated credit institutions regulated under Directive 2013/36/EU,

which are participating in the Single Supervisory Mechanism established by Regulation (EU) No 1024/2013, should report,

without delay, to the European Central Bank any information identified in the course of their market surveillance activities

that may be of potential interest for the prudential supervisory tasks of the European Central Bank specified in that

Regulation.

8.

For high-risk AI systems listed in point 1 of Annex III to this Regulation, in so far as the systems are used for law

enforcement purposes, border management and justice and democracy, and for high-risk AI systems listed in points 6, 7

and 8 of Annex III to this Regulation, Member States shall designate as market surveillance authorities for the purposes of

this Regulation either the competent data protection supervisory authorities under Regulation (EU) 2016/679 or Directive

(EU) 2016/680, or any other authority designated pursuant to the same conditions laid down in Articles 41 to 44 of

Directive (EU) 2016/680. Market surveillance activities shall in no way affect the independence of judicial authorities, or

otherwise interfere with their activities when acting in their judicial capacity.

9.

Where Union institutions, bodies, offices or agencies fall within the scope of this Regulation, the European Data

Protection Supervisor shall act as their market surveillance authority, except in relation to the Court of Justice of the

European Union acting in its judicial capacity.

10.

Member States shall facilitate coordination between market surveillance authorities designated under this Regulation

and other relevant national authorities or bodies which supervise the application of Union harmonisation legislation listed

in Annex I, or in other Union law, that might be relevant for the high-risk AI systems referred to in Annex III.

ELI: http://data.europa.eu/eli/reg/2024/1689/oj

EN

OJ L, 12.7.2024

11.

Market surveillance authorities and the Commission shall be able to propose joint activities, including joint

investigations, to be conducted by either market surveillance authorities or market surveillance authorities jointly with the

Commission, that have the aim of promoting compliance, identifying non-compliance, raising awareness or providing

guidance in relation to this Regulation with respect to specific categories of high-risk AI systems that are found to present

a serious risk across two or more Member States in accordance with Article 9 of Regulation (EU) 2019/1020. The AI Office

shall provide coordination support for joint investigations.

12.

Without prejudice to the powers provided for under Regulation (EU) 2019/1020, and where relevant and limited to

what is necessary to fulfil their tasks, the market surveillance authorities shall be granted full access by providers to the

documentation as well as the training, validation and testing data sets used for the development of high-risk AI systems,

including, where appropriate and subject to security safeguards, through application programming interfaces (API) or other

relevant technical means and tools enabling remote access.

13.

Market surveillance authorities shall be granted access to the source code of the high-risk AI system upon a reasoned

request and only when both of the following conditions are fulfilled:

(a) access to source code is necessary to assess the conformity of a high-risk AI system with the requirements set out in

Chapter III, Section 2; and

(b) testing or auditing procedures and verifications based on the data and documentation provided by the provider have

been exhausted or proved insufficient.

14.

Any information or documentation obtained by market surveillance authorities shall be treated in accordance with

the confidentiality obligations set out in Article 78.

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