Cambridge Commentary on EU General-Purpose AI Law

2. Substance

2.1. Article 2(1) AI Act

12Article 2(1) establishes the default rules on the scope of the Act. It identifies the Act’s addressees and defines both the territorial and material conditions under which GPAI models and AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. fall within its scope.³¹ To this end, it distinguishes between AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models. The latter are only explicitly mentioned in Article 2(1)(a).³² This provision establishes that the AI Act applies to ‘providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. general-purpose AI modelsArticle 3(63) AI Act: ‘general-purpose AI model’ means an AI model, including where such an AI model is trained with a large amount of data using self-supervision at scale, that displays significant generality and is capable of competently performing a wide range of distinct tasks regardless of the way the model is placed on the market and that can be integrated into a variety of downstream systems or applications, except AI models that are used for research, development or prototyping activities before they are placed on the market. in the Union, irrespective of whether those providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. are established or located within the Union or in a third country’.³³ Article 2(1)(a) thus clarifies that it is not relevant whether the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. is located in the Union; it is the placing on the Union market of the GPAI model that is the determining factor.³⁴ A providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. that is not located in the Union but places a GPAI model on the Union market falls within the scope of the AI Act and is therefore obliged to comply with its provisions, including the requirement to appoint an authorised representativeArticle 3(5) AI Act: ‘authorised representative’ means a natural or legal person located or established in the Union who has received and accepted a written mandate from a provider of an AI system or a general-purpose AI model to, respectively, perform and carry out on its behalf the obligations and procedures established by this Regulation..³⁵ The following section examines Article 2(1)(a) AI Act in greater detail, focusing in particular on its relation with the notion of ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ as the primary determining condition on the AI Act’s application in relation to GPAI models.³⁶ The meaning of the terms mentioned in Article 2(1)(a) that are formally defined in Article 3, such as ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ and ‘providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.’, are analysed and discussed more broadly elsewhere in this work.³⁷

2.1.1. Placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.

13Article 2(1)(a) states that the AI Act applies to GPAI models that are ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’.³⁸ Article 3(9) defines this as ‘the first making available of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or a general-purpose AI modelArticle 3(63) AI Act: ‘general-purpose AI model’ means an AI model, including where such an AI model is trained with a large amount of data using self-supervision at scale, that displays significant generality and is capable of competently performing a wide range of distinct tasks regardless of the way the model is placed on the market and that can be integrated into a variety of downstream systems or applications, except AI models that are used for research, development or prototyping activities before they are placed on the market. on the Union market’. Article 3(10) in turn clarifies that ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’ refers to the supply of such systems or models for distribution or use on the Union market in the course of a commercial activity, whether for remuneration or free of charge.³⁹

14For the discussion of Article 2(1)(a) it is, however, relevant to emphasise that the definition of ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’ delineates between two types of actions a model may be subject to in the course of a commercial activity within the Union market: ‘distribution’ and ‘use’.⁴⁰ Recital 97 also suggests a potential third mechanism for placing GPAI models on the market, namely where they are ‘integrated’ into an ‘own’ AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is subsequently made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., even though this mechanism is not explicitly reflected in Article 3(9) or (10).⁴¹ These three concepts of ‘use’, ‘distribution’ and ‘integration’ will be discussed in the following subsections. Before moving on to these three concepts, it is important to reiterate that both actions can only constitute ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’ when conducted in the ‘course of a commercial activity’, which is often understood in product safety regulation as ‘providing goods in a business related context’.⁴²

2.1.1.1. Supply for distribution on the Union market in the course of a commercial activity

15The first way in which a GPAI model may be made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. under Article 3(10) is through its ‘supply […] for distribution’. Under Article 3(9), the first making available of a GPAI model on the market constitutes its placement on the market. In turn, once placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., under Article 2(1)(a) the GPAI model and its providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. come within the AI Act’s scope. Article 3(7) states that a ‘distributorArticle 3(7) AI Act: ‘distributor’ means a natural or legal person in the supply chain, other than the provider or the importer, that makes an AI system available on the Union market.’ means ‘a natural or legal person in the supply chain, other than the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. or the importerArticle 3(6) AI Act: ‘importer’ means a natural or legal person located or established in the Union that places on the market an AI system that bears the name or trademark of a natural or legal person established in a third country., that makes an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. available on the Union market’.⁴³ Hence, the distributorArticle 3(7) AI Act: ‘distributor’ means a natural or legal person in the supply chain, other than the provider or the importer, that makes an AI system available on the Union market. is the supply chain actor responsible for disseminating a product on the market.⁴⁴ The concept of distribution is not further defined in the AI Act. Textually, this refers to the further dissemination of a product on the market to other actors.⁴⁵ While this definition is made only with reference to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., the non-differentiated reliance on ‘distribution’ in Article 3(10) for the making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. of AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models suggests that a systematic interpretation may require its equivalent reading in relation to both.⁴⁶ Recital 97 offers up the following illustrative examples of market placement: ‘through libraries, application programming interfaces (APIs), as direct download, or as physical copy’.⁴⁷ The Commission’s Guidelines on the scope of obligations for providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of GPAI models provide more examples of this mechanism, such as the making available on the Union market ‘by being copied onto a customer’s own infrastructure’ or when the GPAI model is ‘uploaded for the first time to a public catalogue, hub, or repository for direct download on the Union market’.⁴⁸ Following from the inferred intended will of the legislature as derived from the use of ‘supply […] for distribution’ instead of only ‘distribution’ in Article 3(10) as well as the examples provided in Recital 97, it appears that a GPAI model may be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. through (i) its direct distribution, meaning effective provision of access to another party, but also through (ii) its supply for distribution, understood as an action which allows for access to be gained regardless of whether another party has actually done so. The latter will occur where a commercial offering for GPAI model API access is, for example, made through a software library or public catalogue.

16The concept of ‘distribution’, and the abovementioned examples linked to it, contrast with the notion of ‘use’ discussed in Section 2.1.2.2. While ‘use’ has been usually construed with reference to the operation of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. for its intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.,⁴⁹ ‘distribution’ concerns the GPAI model’s (further) availability on the market through supply or transfer.⁵⁰

2.1.1.2. (Supply for) use on the Union market in the course of a commercial activity

17Use on the Union market in the course of a commercial activity appears to be another potential venue to bring a GPAI model into the scope of the AI Act.⁵¹ Crucially, however, there is ambiguity as to whether Article 3(10) requires actual ‘use’ of a GPAI model for it to be considered made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. or whether the relevant condition is instead the ‘supply’ of the model for use. That ambiguity arises from the wording of Article 3(10), which can be read in two ways: first, as either requiring ‘the supply […] for distribution’ of the GPAI model or its ‘use […] in the course of a commercial activity’, or second, as meaning ‘the supply […] for distribution or use’, so that ‘supply’ covers both ‘distribution’ and ‘use’. In this regard, it is also important to note that the AI Act’s provisions do not explicitly establish what would constitute ‘use’, nor whether a GPAI model may be used directly as such, or only through its integration into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., such that prior integration would be necessary before the GPAI model can be regarded as being used through the use of the system.⁵² The Commission’s Blue Guide explains that ‘use’ ‘refers to the intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation. of the product as defined by the manufacturer under conditions which can be reasonably foreseen.’⁵³ It adds that this is usually the ‘end use’ of the product.⁵⁴ This implies that ‘use’ could be defined broadly in the context of the AI Act, as this definition of use in the Blue Guide does not limit particular forms or types of use but simply refers to an intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.. This is reflected, for example, in the Commission Guidelines on prohibited AI practices, which state that the term ‘use’ could be interpreted in a ‘broad manner’ with relation to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.,⁵⁵ in particular by taking into account uses across the system’s lifecycle, such as its further integration into other, ‘more complex systems, processes or infrastructure’.⁵⁶ Analogously, a broad understanding of the concept of ‘use’ would suggest an interpretation that encompasses an equally wide range of applications of GPAI models in commercial activities. This might include situations where a GPAI model is used to train another GPAI model released on the Union market.⁵⁷

18Two arguments push back against the direct transposition of the Blue Guide’s reading of ‘use’, however. First, the Commission Guidelines on prohibited AI practices only implement such a broader perception of ‘use’ for AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., as these guidelines provide interpretative guidance on Article 5 AI Act.⁵⁸ In the same vein, these Guidelines on prohibited AI practices posit that ‘use’ should cover ‘the use or deployment of the system at any moment of its lifecycle after having been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’.⁵⁹ Under this reading, ‘use’ thus presupposes that the object of regulation has already been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..

19While the Commission has thus suggested that it is offering up a ‘broad’ reading of ‘use’ in the Blue Guide and elsewhere in the Guidelines on prohibited practices, this subsequent narrowing of the term’s temporal scope appears to raise significant conceptual ambiguities when applied to both AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models. Specifically, if ‘use’ in the Union of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or GPAI model can itself amount to the first making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. within the meaning of Article 3(10), then the two concepts of ‘use’ and ‘placement on the market’ riskArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm. becoming circular. On this reading, ‘use’ can occur only after market placement, yet market placement, in turn, may depend on a system’s or model’s prior ‘use’, potentially rendering important parts of the AI Act redundant.⁶⁰ The issue of circularity would also occur when the interpretation posited by the Guidelines on prohibited AI practices is applied to an AI system-specific concept such as that of ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ in Article 3(11), which also relies on the ‘first use’ of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. for its intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation..

20Therefore, it can be argued that to truly retain a ‘broad’ nature of the interpretation of ‘use’, the Guidelines on prohibited AI practices could be read as treating the examples of usage after market placement as only one instance of ‘use’, namely one occurring within the post-placement phase of a system’s lifecycle, rather than as confining ‘use’ solely to situations occurring after market placement. A similarly broad construing of ‘use’ also seems to be reflected in the Commission’s Guidelines on the scope of the obligations for general-purpose AI modelsArticle 3(63) AI Act: ‘general-purpose AI model’ means an AI model, including where such an AI model is trained with a large amount of data using self-supervision at scale, that displays significant generality and is capable of competently performing a wide range of distinct tasks regardless of the way the model is placed on the market and that can be integrated into a variety of downstream systems or applications, except AI models that are used for research, development or prototyping activities before they are placed on the market., which notes that a GPAI model can be considered to be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. when it is ‘used for internal processes that are essential for providing a product or service to third parties or that affect the rights of natural persons in the Union.’⁶¹ Crucially, this reading seemingly does not require such internal uses to occur only after the model is already deemed placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. under other conditions.

21Likewise, this issue is mitigated if one reads Article 3(10) as conditioning market availability on supply for use, rather than direct use. Construing Article 3(10) in such a way is supported by literal as well as systematic considerations. On a literal reading, it is noted that Article 3(10) does not contain a comma or another indication before the phrase ‘or use’ to suggest that ‘supply […] for’ should be considered to qualify only distribution and not use. Such an interpretation is also strongly supported by the systematic need to avoid reading the term ‘use’ in a circular manner.

22A second potential argument against reading ‘use’ analogously to the interpretation contained in the Commission Guidelines on prohibited AI practices relies on the Blue Guide definition of ‘use’, which ties ‘use’ to the ‘intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.’ of a product as defined by the manufacturer under conditions that can be reasonably foreseen.⁶² The definition of ‘intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.’ in Article 3(12) expressly refers to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and not to GPAI models, which could indicate that GPAI models – by virtue of being general–purpose – do not have an intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.. However, it should be noted that such an interpretation appears rather rigid. The fact that a model may be capable of serving a wide range of purposes might not necessarily preclude it from also being intended for a more specific use.⁶³ This is discussed in more detail in Section 2.3.2..

23In conclusion, a broad reading of ‘use’, and even more strongly – preferring ‘supply for use’ – appears more compelling than a narrower reading.

2.1.1.3. Integration of a GPAI model into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

24A potential third mechanism through which a GPAI model can be first made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. and, thus, ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’, is through ‘integration’.⁶⁴ While not named explicitly in Article 3(10), Recital 97 indicates that integration of an ‘own‘ GPAI model into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., causes the GPAI model to be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..⁶⁵ In such cases, the obligations for GPAI models apply alongside those for AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments..⁶⁶

25The AI Act acknowledges the possibility of such integration in a number of provisions. Article 3(63), for example, states that a GPAI model ‘can be integrated into a variety of downstream systems or applications’.⁶⁷ Article 3(66) states that a GPAI system is a system that is based on a GPAI model. Recital 100 further explains that the GPAI system can then, in its turn, be integrated into another AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. for a specific purpose: ‘[a] general-purpose AI systemArticle 3(66) AI Act: ‘general-purpose AI system’ means an AI system which is based on a general-purpose AI model and which has the capability to serve a variety of purposes, both for direct use as well as for integration in other AI systems. can be used directly, or it may be integrated into other AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments..’⁶⁸

26While integration is thus widely recognised throughout the AI Act as a mechanism to bring a GPAI model in the Act’s scope, the integration mechanism is not explicitly mentioned in Article 2(1)’s reference to placing the model on the market or Article 3(10)’s definition of making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.. This leaves it unclear how integration affects the Act’s scope.

27A first possibility would be that integration into an own AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. constitutes an independent route to place a GPAI model on the market. In this reading, Article 3(10) can be construed as encompassing a non-exhaustive list of ways in which a GPAI model can be made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge., and thus placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. under Article 3(9). While this can include the first making available of a GPAI model on the market directly, for example, inter alia, through its offering as part of a ‘software library or package’, via API, or through its uploading ‘for direct download on the Union market’, it can also be considered placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. indirectly – when the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. in which it is integrated is first made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge..⁶⁹ The Commission’s Guidelines on the scope of the obligations for GPAI model providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. seem to reflect this interpretation, as paragraphs 53 and 54 thereof explicitly provide that the Commission considers that a GPAI model has been ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ in light of the examples provided in Recital 97 and in particular whenever a GPAI model has been integrated into a ‘chatbot’ or ‘mobile application’ made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge..⁷⁰

28A second, more functional interpretation might posit that ‘integration’ is not an independent route of ‘placing’ or ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’, but instead represents a subcategory of the concept of ‘supply […] for distribution or use in the Union’,⁷¹ which itself leads to placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. as per Article 3(9) and (10). Under this reading, the act of integration into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. can qualify as the supply for use when the model is integrated and the resulting AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. It is key to note that this supply for use through integration would still have to take place in the course of a commercial activity in order to qualify as ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’.⁷² This would arguably be the case when a model is integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for a commercial activity, for example when the system is used to sell products or is essential for the (internal) processes of a commercial enterprise.⁷³ This functional interpretation carries weight, as it interprets the literal wording of Article 3(10) to implicitly include ‘integration’ as part of ‘supply for use’ in light of the recitals and other provisions of the AI Act, instead of requiring the introduction of ‘integration’ as a separate act of making a GPAI model available on the market. This interpretation ensures the consistent interpretation of Article 3(10)’s definition for both AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models, with integration representing a specific category of ‘supply for use’ available to the latter.⁷⁴ From a functional perspective, it appears more coherent to regard such integration as a form of ‘supply for use’, since the GPAI model is effectively employed in a market activity, for example when integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for a commercial purpose such as a chatbot. The act of offering that chatbot for use means the GPAI model has been indirectly supplied for use itself.

29The reason why integration is regarded as a relevant mechanism for placing a GPAI model on the market primarily, or even exclusively, where it is integrated into the GPAI model providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.’s own AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. lies in the fact that where integration is carried out by a downstream entity that integration will usually occur only after the GPAI model has already been made available on the Union market on another basis. More specifically, where a GPAI model is supplied for distribution or use on the Union market and, following that supply, a downstream entity integrates it into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., it is not the integration and subsequent placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. of that system that renders the GPAI model made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.; rather, it is the initial GPAI model availability for integration that does so.

30That said, where the GPAI model was made available outside the Union market and is integrated by a downstream entity into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is placed on the Union market, the Commission considers the GPAI model likewise to have been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..⁷⁵ The Commission’s GPAI Guidelines moreover state that even where a GPAI model was made available outside the Union market and its providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. clearly and unequivocally excluded the placing on the Union market of AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. into which it is integrated, yet such a system was nevertheless made available on the Union market, the GPAI model is still to be considered placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..⁷⁶ The effect of the original GPAI model providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.’s exclusion is not that the GPAI model would not be considered placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. but only that its providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. for the purposes of the AI Act would be the downstream AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. rather than the original de facto developer.⁷⁷

31A key question therefore arises of whether the wording of Recital 97, which addresses the relevant moment of market placement of a GPAI model integrated into an ‘own’ system only, can also aid in interpreting Article 3(9) and (10) as covering those situations of downstream integration. This is especially relevant given that the Guidelines may be self-binding on the Commission but not on the Court of Justice of the European Union (“CJEU”).⁷⁸ While that question is examined in greater detail elsewhere in this commentary,⁷⁹ it is assumed for present purposes that the interpretation advanced in the Commission Guidelines is valid.

2.1.2. Putting GPAI models into service?

32Article 2(1)(a) suggests that the ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ of the GPAI model by a providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. is a general condition for a GPAI model to be in scope of the AI Act.⁸⁰ While AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. are in scope when placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.,⁸¹ GPAI models would thus only fall within the Act’s scope when placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..⁸² As such, the AI Act does not foresee the possibility of a GPAI model being put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..⁸³ This means that a GPAI model is only in scope when ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ because it has been ‘made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’.⁸⁴ GPAI models that are not placed on the Union market would thus fall outside the Act’s scope.⁸⁵

33More specifically, this reading assumes that a GPAI model cannot be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. as Articles 2(1)(a), 3(3),⁸⁶ 3(11)⁸⁷ and 3(63)⁸⁸ do not explicitly foresee that GPAI models can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. As a result, the legislature seemingly did not intend for the possibility of a GPAI model to be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. and be brought into the scope of the AI Act via this mechanism. Instead, the conclusion is that the main condition under which a GPAI model falls within the scope is if it is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., not when put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..

34One might, however, argue that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. under the AI Act and that such putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. would also bring the GPAI model into scope of the AI Act.⁸⁹ This interpretation relies on two key conditions: first, that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. under the AI Act, and second, that the putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. of a GPAI model would also bring it in scope of the AI Act.

35The first condition requires addressing the fact that Article 3(11) AI Act’s definition of ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ only refers to AI systems and not to GPAI models. However, that does not necessarily mean that GPAI models cannot be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. Articles 2(6) and 2(8) both imply that AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and AI models can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., though it is possible that the putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. part of both provisions only refers to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments..⁹⁰ Nevertheless, the idea that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. has some merit as various AI Act provisions refer to the ‘use’ of a GPAI model,⁹¹ which supports the idea that a GPAI model can in fact have an intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.: that a model may be capable of serving a wide range of purposes might not necessarily preclude it from also being intended for a more specific use by its providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge..⁹² This implies that the model can also be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., as the definition of ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ under Article 3(11) refers to either the ‘first use’ by a deployerArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity. or the ‘own use’ for its intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation. by the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge..⁹³ These arguments may be read to suggest that the legislature did not intend to exclude models entirely and that not mentioning GPAI models in Article 3(11) does not per se indicate that they cannot be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..

36The second condition requires specifically addressing that – even if we assume that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. under the AI Act – Article 2(1)(a) does not indicate that putting that GPAI model into service brings that GPAI model into the scope of the AI Act. An argument that supports this implicit extension of this provision is that Article 2 does not clearly exclude GPAI models that are put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. either. Building on the argument that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., it seems natural that putting the GPAI model into service would also bring it into scope of the Act, just as putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. does. The absence of GPAI models in Article 3(11) – and of the impact of putting them into service in Article 2(1)(a) – is then viewed as an omission rather than a deliberate choice, so that GPAI models should be treated analogously to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. when it comes to the Act’s scope regarding ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’.⁹⁴ This view is supported by teleological arguments. AI’s risksArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm. regarding fundamental rights, for example, can manifest themselves when a GPAI model is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., such as when used internally for own use and for its intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation. by a deployerArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity..⁹⁵ Given that the AI Act pursues the dual goal of internal market improvement and the protection of safety, health and fundamental rights,⁹⁶ not extending the AI Act’s scope to GPAI models put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. would hinder the achievement of those goals.

37Nevertheless, in conclusion, the more conservative interpretation of Article 2(1)(a) does not recognise that a GPAI model enters the Act’s scope when it is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. This interpretation is likely the most compelling (i) from a literal interpretative perspective, because it follows from a more straightforward textual reading given that the definition in Article 3(11) does not indicate that it applies to GPAI models, and (ii) from a systematic interpretative perspective,⁹⁷ considering that in other instances where definitions are intended to apply to both AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models, the AI Act appears to typically refer to both expressly,⁹⁸ and there are no other binding provisions on GPAI models that directly address the ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ of a model. This conclusion also seems to be uncontested in the discussions on this provision in the scholarship.⁹⁹ However, the AI Act does simultaneously offer arguments that might support the idea that GPAI models can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., and these might become more compelling as the underlying technology advances. This could, for example, be the case when GPAI models with systemic riskArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain. that are de facto ‘used’ would otherwise fall out of the AI Act’s scope, such as GPAI models that are extensively deployed internally by their ‘would-be’ providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge..¹⁰⁰

2.1.3. Territorial scope

38Article 2(1)(a) establishes that the AI Act applies to providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. GPAI models and placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. in the Union. Whether the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. is located in the Union is irrelevant.¹⁰¹ According to Article 2(1)(c), the AI Act also applies to all providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. and deployersArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity. whose AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.’ output is used in the Union, irrespective of the providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.’ or deployersArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity.’ location.¹⁰² Under the dominant interpretation of the AI Act, the general scoping rule for GPAI models in Article 2(1)(a) relies strictly on the criterion of ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ (Article 3(9)) and relatedly to ‘making available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge.’ (Article 3(10)).¹⁰³ Specifically in regard to the territorial scope, it is notable that the criterion of ‘supply’ in Article 3(10) may occur through various intangible forms such as through libraries, APIs or as a direct download, whereby the physical location of the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. becomes largely irrelevant.¹⁰⁴ As a consequence, the making available of a model or system in the course of a commercial activity, whether for remuneration or free of charge, via the internet will,¹⁰⁵ in principle, constitute placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.,¹⁰⁶ unless the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. has explicitly restricted access or use within the European Union.¹⁰⁷ In the same line of reasoning, the Commission has emphasised that where the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of a GPAI model has excluded use in the Union but a downstream providerArticle 3(68) AI Act: ‘downstream provider’ means a provider of an AI system, including a general-purpose AI system, which integrates an AI model, regardless of whether the AI model is provided by themselves and vertically integrated or provided by another entity based on contractual relations. of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. decides to integrate that model into its system anyway, this downstream providerArticle 3(68) AI Act: ‘downstream provider’ means a provider of an AI system, including a general-purpose AI system, which integrates an AI model, regardless of whether the AI model is provided by themselves and vertically integrated or provided by another entity based on contractual relations. assumes the role of providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of the GPAI model under the AI Act, thereby bringing the GPAI model into scope.¹⁰⁸ In such cases, the downstream actor integrating the model in its AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. qualifies as the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of the model.¹⁰⁹ This interpretation reflects the fact that the Act’s territorial scope for GPAI models is largely functional: once a model is made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge., a person must be considered its providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. so as to ensure the applicability of relevant obligations.¹¹⁰

39This extraterritorial reach seeks to ensure both a level playing field for providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. operating in the internal market and a consistent standard of safety for AI made available to Union users.¹¹¹ While this regulatory technique is not novel in EU internal market legislation,¹¹² commentators have underscored its particular relevance for digital goods and services, which may be developed, hosted or distributed from anywhere in the world.¹¹³ This extraterritorial reach is therefore also seen in other EU legislation focused on regulating the digital sphere, as notably in the Digital Services Act (“DSA”)¹¹⁴ and General Data Protection Regulation (“GDPR”).¹¹⁵

40A further key aspect of the AI Act’s territorial reach is how it appears to function as a tool for reshaping the scope of other EU legislation. This is particularly evident in its interaction with copyright legislation, as Chapter V AI Act sets obligations for GPAI model providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. to put in place a policy to comply with Union copyright law.¹¹⁶ To ensure a level playing field for developers based in different jurisdictions,¹¹⁷ the AI Act would strengthen the territorial scope of Union copyright requirements, such as those regarding the possibility to opt-out of text and data mining.¹¹⁸

2.2. Article 2(3) AI Act

41Article 2(3) is often described as the national security exclusion, yet in substance, it clarifies that the AI Act applies only to activities falling within the scope of Union law.¹¹⁹ The provision comprises three interrelated subparagraphs that together define this boundary, but each introduces a distinct limitation that requires separate analysis. The first subparagraph provides that the AI Act applies only within the scope of Union law and reflects the general division of competences between the Union and Member States established by the Treaties.¹²⁰ The second and third subparagraphs operate as subsets of this general clause and further specify how this relates to the scoping mechanisms set out in Article 2(1).

2.2.1. Article 2(3) AI Act, first subparagraph

42The first subparagraph of Article 2(3) states that the AI Act applies only to areas within the scope of Union law.¹²¹ It does not specifically refer to either AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or GPAI models. This provision reflects the division of competences between the European Union and its Member States, as established in the Treaties.¹²² It serves to ensure that the AI Act does not extend into areas falling outside the Union’s legislative competence, thereby respecting the principle of conferral enshrined in Article 5 TEU.¹²³ Article 4(2) TEU expressly states that ‘national security remains the sole responsibility of each Member State.’ The legislature chose to affirm this principle in Article 2(3), first subparagraph, which states that the Act ‘shall not, in any event, affect the competences of the Member States concerning national security’. Recital 24 AI Act further elaborates on this limitation and refers to Article 4(2) TEU multiple times, underlining that the AI Act does not encroach upon Member States’ exclusive competence in matters of national security.¹²⁴ This provides Member States with leeway in relation to GPAI models in two main ways. First, authorities acting outside the scope of Union law, such as those responsible for national security, may buy, use, or possibly even develop GPAI models without having to adhere to the AI Act.¹²⁵ This has led commentators to argue that there is a riskArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm. that the development of GPAI models for national security and military purposes is siloed off into parallel processes out of the AI Act’s reach.¹²⁶ Second, Member States may still adopt their own regulatory measures in the area of national security, as the exclusion preserves their competence to act independently where Union law does not apply.¹²⁷ This could for example provide room for a Member States’ intelligence agency to demand insight into certain models based on provisions in national legislation on national security.¹²⁸

43However, exactly how much leeway Member States will actually enjoy under this carve-out relates to an ongoing jurisprudential discussion concerning the delineation of national competences and the scope of EU law.¹²⁹ In the Commission’s original proposal for the AI Act, the national security exclusion focused more narrowly on excluding AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. for military purposes.¹³⁰ During the negotiation process, the legislature broadened this exclusion substantively to cover those areas that fall outside the scope of Union law.¹³¹ It was clarified that the exception applies regardless of which entity performs the activities for military or national security purposes.¹³² As notably demonstrated in the field of data protection law, the exclusion of national security from the scope of Union law is not absolute, even when it is expressly included in the text of an EU regulation.¹³³ In Privacy International, the CJEU stated that while Member States do retain, under Article 4(2) TEU, the national security competence, this does not mean that every (regulatory) measure they take with the aim of promoting national security falls outside the scope of Union law. Member States need to act in accordance with the Union’s laws when taking measures:

although it is for the Member States to define their essential security interests and to adopt appropriate measures to ensure their internal and external security, the mere fact that a national measure has been taken for the purpose of protecting national security cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law.¹³⁴

44Hence, regulatory measures adopted by Member States in light of their national security interests that conflict with the rules established in the AI Act may still be subject to judicial review in relation to the AI Act.¹³⁵

45Authors have derived a further limitation from the case law, in particular from the La Quadrature du Net judgment.¹³⁶ In that case, the Court of Justice emphasised that the involvement of private actors constitutes a relevant indicator that the activities concerned fall within the scope of Union law and cannot be excluded on the ground of national security.¹³⁷ This raises the question of whether national security authorities can rely on private actors supplying GPAI models without triggering the applicability of the AI Act.¹³⁸ The repeated reference in Article 2(3) to the exclusion of national security activities from the AI Act’s scope regardless of the actor entrusted with such tasks may be interpreted as reflecting an explicit legislative choice of departure by the AI Act from the reasoning of the Court in La Quadrature du Net.¹³⁹ This is particularly interesting since it has been argued that this Court judgement forms part of the primary law of the EU and that the AI Act’s provisions cannot override it.¹⁴⁰ However, it can also be argued that the stricter interpretation of Article 4(2) TEU, as forwarded by the cited judgement, can be deemed applicable only insofar as a given national security exemption in EU secondary law is articulated in general terms. If the legislature has expressly limited the scope of harmonisation, as appears to be the present case, it can be argued that this general jurisprudential position cannot prejudice the legislature’s competence to autonomously delineate the extent of harmonisation in a given field of EU law, including by excluding all activities related to national security, regardless of whether they are carried out by private or public entities.

2.2.1.1. Article 2(3), second subparagraph

46Article 2(3), second subparagraph, stipulates that ‘[t]his Regulation does not apply to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. where and in so far as they are placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., or used with or without modification exclusively for military, defence or national security purposes, regardless of the type of entity carrying out those activities.’¹⁴¹ This subparagraph thus aims to exclude from the scope of the AI Act any AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. used exclusively for military, defence, or national security purposes, irrespective of the nature or identity of the actor involved.¹⁴² Recital 24 substantiates this choice by referring to the common Union defence policy covered by Chapter 2 of Title V TEU and to Article 4(2) TEU.¹⁴³ In this sense, the second subparagraph can be viewed as a more specified version of the general rules on EU and Member State competences,¹⁴⁴ discussed in Section 2.2.1. This part of the exclusion in the second subparagraph is meant to ensure that AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. used for the mentioned purposes are not burdened by the requirements applicable to (high-risk) AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., for example, in the case of intelligence operations or response to hybrid threats,¹⁴⁵ or to allow Member States to remain autonomous in matters of defence and military operations.¹⁴⁶ Given that this already follows from the division of competences in the Treaties, the subparagraph can therefore be viewed as having primarily a declaratory or affirmative nature rather than a substantive effect.¹⁴⁷ This declaratory function mainly lies in the fact that the provision notes that an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.¹⁴⁸ is only out of scope of Union law when placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. or used exclusively for military, defence and national security purposes. Still, it can also be argued, as with subparagraph 1, that this express delineation may serve to provide additional legal certainty on the will of the legislature to exclude certain activities regardless of the entities which perform them, thereby removing them from the specific scope of harmonisation carried out by the AI Act.

2.2.1.2. Article 2(3), third subparagraph

47The third exclusion under Article 2(3) states that the AI Act ‘does not apply to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. which are not placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. in the Union, where the output is used in the Union exclusively for military, defence or national security purposes, regardless of the type of entity carrying out those activities.’ This provision appears to function as a carve-out from Article 2(1)(c), which extends the territorial scope of the Regulation to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. whose outputs are used in the Union, irrespective of the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.’s or deployerArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity.’s location. The third exclusion thus aims to limit the reach of Article 2(1)(c) in the specific context of military, defence and national security applications¹⁴⁹ and is intended to ensure that cooperation in the field of defence and national security between Member States and third countries can continue without the AI OfficeArticle 3(47) AI Act: ‘AI Office’ means the Commission’s function of contributing to the implementation, monitoring and supervision of AI systems and general-purpose AI models, and AI governance, provided for in Commission Decision of 24 January 2024; references in this Regulation to the AI Office shall be construed as references to the Commission. scrutinising third countries’ AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and Member States’ intelligence services.¹⁵⁰ This third exclusion can also be viewed as reaffirming the division of competences and declaring that this also applies to situations in which the use of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.’s output would otherwise bring that system within the scope of the AI Act.

2.3. Article 2(6) AI Act

48Article 2(6) provides an exclusion for AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and GPAI models that are specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose of scientific research and development.¹⁵¹ This provision, often referred to as a ‘scientific exclusion’,¹⁵² was included to avoid an adverse impact on scientific progress.¹⁵³ Where the exclusion applies, the relevant AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and models, including GPAI models,¹⁵⁴ are not covered by the Act.¹⁵⁵ The following sections will examine the criteria of ‘specifically developed for a sole purpose’, ‘put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’, and ‘scientific research and development’. Doing so will shed light on whether, and to what extent, the Article 2(6) exclusion is relevant for GPAI models and can indeed be viewed as a purposive exclusion for scientific research and development purposes.¹⁵⁶

2.3.1. Specifically developed […] for the sole purpose

49The Article 2(6) exemption only concerns AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and models that were ‘specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose’ of scientific research and development. This provision gives rise to multiple interpretative approaches, notably because the concepts of neither ‘specifically developed’ nor ‘sole purpose’ are clearly defined in the AI Act.

50Specifically in the context of GPAI models, a textual reading of the very definition of a GPAI model¹⁵⁷ implies significant generality, the capability to competently perform a wide range of distinct tasks, and being integrable into various downstream systems or applications.¹⁵⁸ This seemingly precludes it from having been developed specifically for a sole purpose, such as scientific research.¹⁵⁹ In this reading, the ‘sole purpose’ might largely overlap with the concept of ‘intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.’ defined in Article 3(12), which is only applicable to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that serve a purpose intended by the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge..¹⁶⁰ While a providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. or deployerArticle 3(4) AI Act: ‘deployer’ means a natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity. may use a GPAI model for the sole purpose of scientific research and development, Article 2(6) also requires that the model is specifically developed for that same sole purpose. It has therefore been questioned whether this exclusion can meaningfully apply to GPAI models because a research project can have both scientific and practical applications at the same time.¹⁶¹ GPAI models, by their very definition, competently perform a wide range of tasks.¹⁶²

51Under this interpretation, the inherent generality of GPAI models would render them structurally incompatible with the scope of this exclusion.¹⁶³

52It may also be possible to read ‘sole purpose’ more broadly, differentiating it from the more narrowly construed ‘intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.’ found in Article 3(12), which is aimed at specific forms of use of AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. as envisioned by the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge..¹⁶⁴ A GPAI model might then display significant generality and be capable of performing a wide range of distinct tasks,¹⁶⁵ despite having been developed for a ‘sole purpose’ such as research and development.

53Phrased differently, Article 3(63)’s generality of purpose would thus indicate that the model can later be integrated into AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. with specific intended purposesArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation. as meant in Article 3(12).¹⁶⁶ However, that possibility of integration does not necessarily exclude the possibility that a GPAI model is specifically developed for a particular domain, as meant in Article 2(6). This alternative interpretation of ‘sole purpose’ seems convincing from a more functional and technical perspective, as an AI model that is optimized for a certain task or domain can still qualify as a GPAI model under Article 3(63). An additional argument supporting this functional interpretation lies in the legislature’s choice of terminology. Article 2(6) does not rely on the notion ‘intended purposeArticle 3(12) AI Act: ‘intended purpose’ means the use for which an AI system is intended by the provider, including the specific context and conditions of use, as specified in the information supplied by the provider in the instructions for use, promotional or sales materials and statements, as well as in the technical documentation.’ but instead introduces the distinct concept of ‘sole purpose’. If the legislature had intended these terms to carry the same meaning, there would have been no need to introduce a new one.¹⁶⁷ Under this compelling functional interpretation, a GPAI model specifically developed for a sole purpose may fall within the Article 2(6) exclusion.¹⁶⁸

2.3.2. Put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.

54Interestingly, the Article 2(6) exclusion seemingly stands at odds with Article 2(1)(a)’s requirement – which is considered to be a general condition to be subject to the Act’s scope¹⁶⁹ – that the AI Act would only apply to GPAI models that are ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’.¹⁷⁰ Specifically, Article 2(6)’s exclusion seems to be tailored to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and AI models that are not placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., but that are ‘specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose of scientific research development’ (emphasis added). Yet, the AI Act does not expressly acknowledge that AI or GPAI models can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. in the first place, nor does it indicate that such putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. would bring a GPAI model within the scope of the Act.¹⁷¹ Consequently, Article 2(6) may appear superfluous in relation to GPAI models, as they are only in scope when placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. and the AI Act does not explicitly foresee their being put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..

2.3.2.1. Within scope because put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.?

55There are, however, some arguments that support the idea that a GPAI model can be ‘put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ in the sense of Article 3(11),¹⁷² as discussed above.¹⁷³ Assuming that a GPAI model can indeed be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., does, however, not necessarily imply that this also brings that model within the scope of the AI Act. The definitional question of what constitutes ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ and the scoping question of whether this in turn triggers the AI Act’s application are closely connected, yet distinct in nature and in the arguments they rely on.¹⁷⁴ Interestingly, however, the view that a GPAI model can be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. without bringing it within the Act’s scope would create an interpretative conundrum when it comes to excluding GPAI models from the AI Act’s scope under Article 2(6). Namely, the GPAI model could in principle be excluded under Article 2(6) if it is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. and adheres to the other criteria of Article 2(6) AI Act – such as being ‘specifically developed for the sole purpose of scientific research and development’¹⁷⁵ – but the GPAI model would not have been in scope on the basis of Article 2(1)(a) in the first place. This reading would still render Article 2(6) superfluous in relation to GPAI models, even if their putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. is acknowledged as a factual possibility. Nevertheless, this corresponds to the prevailing interpretation of the AI Act, according to which Article 2(6) does not apply to GPAI models because these models are only in scope when ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’.¹⁷⁶

56A question therefore arises as to whether a GPAI model may first be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., thereby falling within the scope of the AI Act, and only subsequently be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. exclusively for scientific research and development, with the result that it would then fall outside the scope of the AI Act. In principle, the concepts ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ and ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ are to be viewed as two distinct triggers of the applicability of the AI Act – or at least in relation to AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments..¹⁷⁷ Even though the Blue Guide contains the phrasing ‘products which are intended to be placed (and/or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.) on the market’¹⁷⁸ (emphasis added), the Commission has explained that this might create a wrong impression and has clarified that these two concepts refer to two different ‘moments’ in the process of bringing a product to the market.¹⁷⁹ In addition, it states that ‘[e]ven if the reference to two terms may create the impression that “placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.” and “putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.” are two different moments when a product compliance is to be assessed, this is not the case: as these two terms are mutually exclusive, either one or the other is relevant.’¹⁸⁰ Article 2(1)(a) reflects this quite clearly, as it expressly states that it concerns providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments..¹⁸¹ Given that ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ and ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ constitute two distinct concepts referring to two different moments in time at which the Act may become applicable, the conclusion could be drawn that a model cannot be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. and subsequently be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. Even if a GPAI model that has already been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. could subsequently be put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., that action might appear to be legally irrelevant insofar as any providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. obligations would have become enforceable at the moment of market placement.

57Nevertheless, at the same time, it is impossible to fully rule out a different interpretation with more overlapping terminology, according to which ‘placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ and ‘putting into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ would be more sequential stages in which a GPAI model can enter the Act’s scope through market placement and afterwards be de facto put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., for example when being integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.. Extending this logic to Article 2(6) means that a GPAI model developed for the sole purpose of scientific research and development, then ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’ – thereby bringing it in the scope of the Act pursuant to Article 2(1)(a) – and then ‘put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ for the sole purpose of scientific research and development, might fall within the Article 2(6) exemption.¹⁸²

2.3.2.2. Integration into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.

58As mentioned above, there are two main ways in which a GPAI model may be integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.: by the model providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. itself or by a downstream actor.¹⁸³ In the first scenario, if the GPAI model is not made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. separately from the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. into which it is integrated, the placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. of the system and of the model coincide.¹⁸⁴

59In the second scenario, by contrast, the model is supplied on the Union market for further integration into AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. by downstream actors. Therefore, the first instance of making available the GPAI model on market for subsequent system integrations will itself constitute market placement and not those subsequent integrations. In that case, whether or when downstream integration actually occurs is irrelevant for determining the moment at which the original providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. places the model on the market. Rather, the decisive moment is when the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. makes the model available on the Union market for further integration, for example by offering it as part of a ‘software library or package’.¹⁸⁵ Even though a downstream actor might subsequently integrate the model into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that falls within the exception of Article 2(6), it does not appear preferable, in principle, to automatically extend that exception to the model as well.

60Thus, Article 2(6) appears relevant primarily in the first scenario – where the GPAI model providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. integrates the GPAI model into an own AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and then puts that system into service solely for the purposes of scientific research and development. Insofar as the GPAI model has not been made available independently of the system into which it is integrated, it appears possible to argue that if the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. falls outside the scope of the AI Act on the basis of Article 2(6), then the GPAI model likewise falls outside the scope. The analysis below therefore focuses only on the viability of the first integration scenario, given that GPAI models made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. for further integration by downstream actors are a priori excluded from the scope of application of Article 2(6).

61Based on a textual reading, the Article 2(6) exclusion only applies to the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose of scientific research and development. The GPAI model can then be considered to be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. because it was integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that was placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..¹⁸⁶ Therefore, when integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments., the GPAI model is not ‘put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ but rather ‘placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.’, disqualifying it for the Article 2(6) exclusion. It would thus remain within the Act’s scope after the integration, even though the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. built on top of it is itself excluded from the AI Act.¹⁸⁷ This interpretation finds teleological support in the Act’s regulatory objectives: the risksArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm. of the underlying GPAI model that Chapter V AI Act addresses are not inherently more limited in scientific instead of commercial contexts.¹⁸⁸ In addition, the procedural rather than substantive nature of the GPAI requirements¹⁸⁹ implies a lower compliance threshold,¹⁹⁰ which would imply that the exclusion’s goals could be realised at a minimal cost, thus respecting the rationale underpinning the research exemption to avoid adversely impacting scientific research.

62Nevertheless, the AI Act could also be interpreted more holistically. Once a GPAI model is integrated into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., one could view that model as being integrated into that system, entailing that it is therefore no longer separable from it.¹⁹¹ After all, the whole applicability of the AI Act to that model, at that point, rests on its integration into the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that falls within the Act’s scope. When that AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. itself is excluded from the Act’s scope under Article 2(6), the basis for triggering the Act’s applicability likewise can be argued to have ceased to exist. Phrased differently, where a GPAI model would be considered placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. and thus subject to the AI Act’s scope solely by virtue of its integration into an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that has been put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose., it can be argued that the underlying model cannot be treated as separately within scope if the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. into which it is embedded falls under the scientific research exclusion.

63The more textual interpretation appears more compelling as the wording of the Act does not indicate with sufficient clarity that a GPAI model should be considered to fall outside of the AI Act’s scope in this scenario. Furthermore, from a policy perspective, it seems coherent that the relevant GPAI model would remain within the Act’s scope, given its potential to generate systemic risksArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain. irrespective of the specific context in which a specific downstream system is deployed.¹⁹² Nevertheless, the alternative structure-based interpretation retains merit, as it rightly questions how a model could fall within the Act’s scope when it was only brought within the scope on the basis of its integration in a system that would, itself, fall outside the scope of the Act.

2.3.3. Scientific research and development

64Article 2(6) requires that an AI model was specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose of ‘scientific research and development’. The AI Act does not further define ‘scientific research and development’.¹⁹³ Recital 25, which clarifies the exclusion’s goal,¹⁹⁴ explicitly contrasts the concept of scientific research and development to the conduct of research and development as an activity by stating:

Furthermore, without prejudice to the exclusion of AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. specifically developed and put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose. for the sole purpose of scientific research and development, any other AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that may be used for the conduct of any research and development activity should remain subject to the provisions of this Regulation.

65As a result, some have argued that the Article 2(6) exclusion is specifically meant for the use of AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. and models without placing them on the market, and therefore concerns either the own use or the direct supply of a bespoke research-focused AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or model to a third entity conducting scientific research without being made available on the marketArticle 3(10) AI Act: ‘making available on the market’ means the supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. in another way.¹⁹⁵ Adopting a similar line of thinking, other authors have stated that the Article 2(6) exclusion reflects the AI Act’s goal of internal market harmonisation, by ensuring that AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. used solely for scientific research and development, as a primarily non-commercial activity, remain outside of the scope of the AI Act.¹⁹⁶ However, legal uncertainty persists regarding this concept’s interpretation. Furthermore, it is important to note that large AI research projects, notably those stimulated by European Union institutions, usually involve significant public-private collaboration¹⁹⁷ and correspondingly a collaboration between parties with a primarily scientific or commercial interest. Thus, it comes as not surprise that some authors have criticised such distinctions as ‘antiquated’.¹⁹⁸ A strict interpretation of the concept of scientific research and development as excluding all commercial actors thus threatens to render Article 2(6)’s exclusion significantly less useful in practice.¹⁹⁹

66In an attempt to gain more clarity on the meaning and boundaries of Article 2(6)’s ‘scientific research and development’ one can attempt to draw interpretative guidance from other areas of EU law.²⁰⁰ As a general note, it is important to emphasise that drawing upon definitions in other legislation is to be done with appropriate caution.²⁰¹ The following sections will examine two relevant fields that have received the most attention in the literature: copyright and data protection law.²⁰² As discussed below, these fields share a common feature: the interpretation of ‘scientific research purposes’ is closely intertwined with national legal traditions and with the regulatory frameworks governing research institutions in each Member State.²⁰³ This does not, of course, imply that the CJEU must take these national differences into account when interpreting the notion of scientific research and development under the AI Act; the Union is not bound by national interpretations of these terms but may, instead, construe ‘scientific research and development’ as an autonomous concept of EU law.²⁰⁴

67Given the ambiguity surrounding the notion ‘scientific research and development’, it is instructive to look at how other EU law instruments deal with this notion. The latter may inspire the interpretation applicable in the context of the AI Act.²⁰⁵

2.3.3.1. Scientific research and development under the CDSM Directive and the DSA

68In the context of copyright and related intellectual property rights, Article 3 of the Directive on Copyright in the Digital Single Market (“CDSM Directive”) requires Member States to (inter alia) introduce an exception on certain rights for ‘reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text and data mining of works or other subject matter to which they have lawful access.’²⁰⁶

69Recital 12 of the CDSM Directive provides interpretative guidance on the notion of ‘scientific research’, stating that the term may encompass all scientific disciplines, including both the natural sciences and the humanities.²⁰⁷ Notably, the CDSM Directive restricts the scope of the exception by reference to the nature of the entity conducting the research, namely the notion of a ‘research organisation’, defined as an entity that operates on a primarily non-commercial basis.²⁰⁸ The CDSM Directive’s Article 2(1) and Recital 12 clarify that entities subject to ‘decisive influence’ by commercial undertakings, such as through shareholding or membership structures granting preferential access to research outcomes, should not be regarded as research organisations for the purposes of the Directive.²⁰⁹ However, certain national judgements, such as that in the German case Knesche v. Laion eV (on the German implementation of this CDSM Directive: Article 60d of the Urheberrechtsgesetz²¹⁰) stress that this notion should not be understood too narrowly.²¹¹

70Notably, the DSA directly imports the CDSM Directive’s approach to the notion of scientific research. In particular, Article 40(4) DSA requires providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of very large online platforms and very large online search engines to grant data access to ‘vetted researchers’ for the ‘sole purpose’ of conducting research aimed at detecting, identifying and understanding systemic risksArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain. within the Union, as well as at evaluating the adequacy and effectiveness of risk-mitigation measures adopted by providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. under Article 35 DSA. The first cumulative condition for obtaining ‘vetted researcher’ status under Article 40(8)(a) DSA is that the applicant be affiliated with a research organisation within the meaning of Article 2(1) CDSM Directive.²¹² Article 40(8)(b) DSA further stresses that those researchers should be ‘independent from commercial interests’. The DSA, therefore, has not developed an autonomous notion of scientific research but rather closely follows the CDSM Directive’s relatively narrow scope of clearly delineated institutions that may benefit from the concept.

71In contrast, however, the AI Act does not contain a similar express limitation related to the character of the entities that may conduct scientific research to fall under the conditions for Article 2(6) application. This may be interpreted as implying that the relevant research can be carried out by any entities, including those with primarily commercial character.²¹³ Conversely, however, the need to distinguish ‘research and development’ as a commercial activity under Article 2(8)²¹⁴ might support a narrower interpretation of ‘scientific research and development’ under Article 2(6), similar to that under the CDSM Directive and the DSA.

2.3.3.2. Scientific research and development in data protection law

72Union data protection rules, and specifically the GDPR, appear to also offer a relevant point of interpretative comparison, considering that a research exemption (Article 9(2)(j) GDPR) applies to Article 9 GDPR’s prohibition of the processing of special categories of data, such as data on health or political opinion.²¹⁵ Article 9(2)(j) GDPR allows the Union or Member State legislature to lift this prohibition if required for archiving purposes in the public interest, for scientific or historical research purposes, or for statistical purposes.²¹⁶ Moreover, Article 89 GDPR similarly emphasises the need for appropriate safeguards when processing data for ‘archiving purposes in the public interest, scientific or historical research purposes or statistical purposes’.²¹⁷ This results in a different system than under the AI Act. Under the GDPR, more targeted derogations for specific rights are to be enacted via Union or Member State law that not only have to provide for additional safeguards on the processing for these purposes, but that also would limit how broadly the exemption can be interpreted.²¹⁸ This contrasts with the AI Act’s approach in Article 2(6) that provides for a blanket exclusion from the AI Act’s scope as a whole. Second, the GDPR’s framework allows Member States to connect the GDPR exemption to their respective definition of scientific research in national legislation,²¹⁹ which over ten Member States have taken advantage of.²²⁰ The AI Act, on the other hand, does not permit Member States to further develop the meaning or applicability of the scientific exclusion in Member State law.²²¹ These points of difference between the AI Act and GDPR limit the possibility of interpreting the AI Act’s definition on scientific research and development in light of the GDPR.²²²

73These differences imply that the notion of scientific research under the GDPR differs significantly from the similar notion under the AI Act, as its legislative framework is inherently designed to accommodate diverging Member State rules. Consequently, this fundamental divergence in approaches appears to support a view that the AI Act’s notion of ‘scientific research’ should be interpreted independently, rather than by analogy to the GDPR and other similar derogations in other EU legislation.²²³

2.4. Article 2(8) AI Act

74Article 2(8) contains another important limit to the Act’s scope. It offers an exclusion for research, testing and development activities that are being executed before an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or AI model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose..²²⁴ This is sometimes referred to as an exemption for commercial use.²²⁵ Recital 25, which appears to relate to both Articles 2(6) and 2(8), reflects this idea by discussing ‘product-oriented research, testing and development’.²²⁶ Despite this exemption’s generality in terms of relevant actor, domain and purpose, it is important to emphasise that Article 2(8)’s exclusion does come with some key limitations. More specifically, this provision targets certain activities before market placement or deployment.²²⁷

2.4.1. Research and development activities

75The AI Act does not define the concept of ‘research, development and testing activities’. Some authors have therefore argued that these activities include all preparatory activities carried out before an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.,²²⁸ regardless of their later field of application, which is the primary differentiating factor from the exclusion under Article 2(6).²²⁹ Others state that research, testing and development activities in the field of AI are diverse and can encompass both theoretical studies as well as practical applications.’²³⁰ In doing so, they rely on a broad reading of these types of activities and assume a clear-cut delineation between the pre- and post-market phase. Under that broad reading, preparatory activities could span several stages of preparation, including development planning and the pre-processing of data, pre-training, and post-training activities aimed at fine-tuning the model.²³¹ In contrast, activities that are aimed at model and system integration or post-deployment monitoring would not benefit from the exemption.²³²

76This broad reading sits in tension with various other AI Act provisions that relate directly to research and development activities that would supposedly be out of scope by virtue of unfolding prior to the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or model being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. In particular, Chapter III imposes obligations on providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of high-risk AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. that in some cases expressly relate to the development in the pre-market phase, such as testing,²³³ riskArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm. mitigation,²³⁴ and design requirements.²³⁵ Chapter V similarly contains providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. obligations that encompass research and development activities involving GPAI models prior to their placement on the market, such as the obligations set out in Article 53, inter alia, with regard to training dataArticle 3(29) AI Act: ‘training data’ means data used for training an AI system through fitting its learnable parameters. and compliance with Union copyright law in the development process (Article 53 (1)(c))²³⁶ and the explicit reference to the development phase in Article 55(1)(b),²³⁷ as well as in the related recitals.²³⁸ This tension between Article 2(8)’s exclusion – excluding the development phase from the Act’s scope – and these more substantive obligations which, by their very nature, relate to that phase,²³⁹ underscores the importance of a thorough understanding of Article 2(8). This tension might also imply that Article 2(8)’s ‘research, testing or development activity regarding AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or AI models prior to their being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ should be given a narrower reading.

77Such a narrow reading could help largely relieve the tension between these obligations with pre-market implications and the phrasing of Article 2(8). A very narrow reading would be to restrict these activities to open-ended exploratory and non-product-oriented research activities that are not yet directed at the development of a specific GPAI model (or AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.) that would be placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.. Alternatively, Article 2(8)’s ‘research, testing or development activity regarding AI systemsArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or AI models prior to their being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’ could also be read more broadly without necessarily implying a broad interpretation of Article 2(8) as a whole. To this end, more types of activities would be captured, while the scope of the exclusion would remain limited through an emphasis on ‘prior to being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.’.²⁴⁰ The latter reading seems to offer the most balanced approach to alleviate the apparent tension inherent in Article 2(8), as is explored in more detail in the following section.

2.4.2. Prior to their being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.

2.4.2.1. Temporal implications

78Article 2(8)’s exclusion only applies to research, testing and development activities conducted prior to the AI model being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. (or put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.).²⁴¹ This raises the question of at what point in time the AI Act starts to apply to a providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of a GPAI model. Article 2(8) is sometimes seen as a temporal rather than a substantive scope limitation, whereby research, testing and development activities are excluded from regulatory obligations only for as long as the AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or model remains in the development phase before market placement or deployment.²⁴² Substantively, these activities could then include more preparatory activities conducted before an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. (broad reading),²⁴³ or some more limited, specific, targeted activities (narrow reading), as discussed in the previous section.

79However, it should be noted that neither reading of Article 2(8) excludes the need for providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. to take the substantive obligations of the AI Act into account during the development phase. Rather, the exclusion in Article 2(8) indicates that the AI Act does not impose any ‘immediate obligations’ in relation to those activities as such.²⁴⁴ Once a GPAI model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market., however, it falls within the scope of the AI Act, and from that moment onwards, the substantive obligations laid down in the AI Act become applicable to it.²⁴⁵ This also implies that any such obligations would need to be ‘retroactively’ complied with: compliance at the time of placing the model on the market is dependent on behaviour during this preliminary phase.²⁴⁶ In this sense, Article 2(8) has a distinct temporal effect ensuring that the AI Act only applies once a GPAI model falls within its scope. This is arguably a reiteration of Article 2(1)(a)’s scoping provision, which may lead one to consider Article 2(8) to be superfluous, as it already follows from Article 2(1) that no obligations can arise for a GPAI model insofar as it has not been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market..²⁴⁷

80This ‘temporal’ effect of Article 2(8) finds further support in the provision’s second sentence which underscores that research, testing and development activities must be conducted ‘in accordance with applicable Union law’, notably including Union copyright law as explicitly referenced in Article 53(1)(c).²⁴⁸ It also finds support in Article 3(63)’s definition of a GPAI model,²⁴⁹ which explicitly provides that a model used for research, development or prototyping activities prior to its placing on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. does not qualify as a GPAI model under the AI Act.²⁵⁰ In the same vein, Recital (a) of the GPAI Code of Practice Safety and Security Chapter affirms that ‘the Signatories recognise that providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. of general-purpose AI modelsArticle 3(63) AI Act: ‘general-purpose AI model’ means an AI model, including where such an AI model is trained with a large amount of data using self-supervision at scale, that displays significant generality and is capable of competently performing a wide range of distinct tasks regardless of the way the model is placed on the market and that can be integrated into a variety of downstream systems or applications, except AI models that are used for research, development or prototyping activities before they are placed on the market. with systemic riskArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain. should continuously assess and mitigate systemic risksArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain., taking appropriate measures along the entire model lifecycle (including during development that occurs before and after a model has been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.) […]’.²⁵¹ Measure 1.1. of the Safety and Security Chapter also states that providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. will create a state-of-the-art safety framework that takes into account the models that they are developing.²⁵² Moreover, the Safety and Security Chapter requires signatories to take appropriate measures along the entire lifecycle of the model.²⁵³

81While this temporal interpretation of Article 2(8) is rather compelling, some authors hint at an alternative view: in order to resolve the apparent tension between Article 2(8)’s exclusion and the AI Act provisions relating to the development stage, they consider the possibility ‘that the research exemption does not apply in relation to requirements explicitly addressed during testing and development.’²⁵⁴ But as also mentioned by these authors, such a lex specialis view conflicts with the broad wording of Article 2(8)²⁵⁵ as well as with the wording of other elements of Article 2²⁵⁶ and Article 3.²⁵⁷ Furthermore, under general principles of systematic and purposive interpretation in EU law, any construction of the research exclusion that would deprive the rules governing the development phase of their practical effect, in particular the risk-assessment and mitigation obligations related thereto, is difficult to reconcile with the AI Act’s general scheme and objectives.²⁵⁸ Nevertheless, this view does find some support in Article 1(1)’s reference to the functioning of the internal market rather than solely to the market placement of products.²⁵⁹

2.4.2.2. Enforcement implications

82With regard to enforcement, Article 2(8)’s temporal interpretation would suggest that, while a model does not formally fall within the scope of the Act during its pre-market development or internal testing – the methods, safeguards, and procedures applied during that phase are subjected to regulatory scrutiny once the model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.. At that point in time, the Act applies in full and the AI OfficeArticle 3(47) AI Act: ‘AI Office’ means the Commission’s function of contributing to the implementation, monitoring and supervision of AI systems and general-purpose AI models, and AI governance, provided for in Commission Decision of 24 January 2024; references in this Regulation to the AI Office shall be construed as references to the Commission.’s enforcement powers could be applied vis-à-vis the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge.. This temporal emphasis has led some authors to suggest that the wording of Article 2(8), stating that the AI Act ‘does not apply’, might in fact be too broad, as certain provisions clearly relate to research, development and testing activities.²⁶⁰

83A consequence seems to be that, while the substantive obligations relevant to GPAI model providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. as set out in Chapter V do govern the development phase and apply to the model’s entire lifecycle, they would only be enforceable once the model is placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. (or arguably, when it is put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.).²⁶¹ It is at that point that the model enters the scope of the AI Act and the temporal exclusion established in Article 2(8) ceases to apply. An important implication is that if a GPAI model was developed in such a way that compliance with the AI Act’s obligations is impossible, for example because it is trained in a way in which it can no longer comply with obligations on training dataArticle 3(29) AI Act: ‘training data’ means data used for training an AI system through fitting its learnable parameters. under Article 53,²⁶² the providerArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. would by definition be in breach of the Act as soon as it places the model on the market.²⁶³ As a result, providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. would be required to, in practice, take the AI Act’s obligations into account during the development phase of an AI systemArticle 3(1) AI Act: ‘AI system’ means a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. or GPAI model if they might later bring that model to the EU market.²⁶⁴

84It is key to underscore that this view does not imply that providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. are not governed by the AI Act. The AI Act’s obligations throughout their entire development process imply that AI development is governed by the AI Act, and that – from a teleological perspective – regulatory oversight on such development is very much mandated, required and desirable to ensure AI Act compliance, constituting a form of anticipatory compliance. This informal governance mechanism corresponds with the AI Act’s goals to prevent risksArticle 3(2) AI Act: ‘risk’ means the combination of the probability of an occurrence of harm and the severity of that harm..²⁶⁵ It also finds support in the Code of Practice where signatories have agreed to: ‘[…] continuously assess and mitigate systemic risksArticle 3(65) AI Act: ‘systemic risk’ means a risk that is specific to the high-impact capabilities of general-purpose AI models, having a significant impact on the Union market due to their reach, or due to actual or reasonably foreseeable negative effects on public health, safety, public security, fundamental rights, or the society as a whole, that can be propagated at scale across the value chain., taking appropriate measures along the entire model lifecycle (including during development that occurs before and after a model has been placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market.)[…]’.²⁶⁶

85Article 2(8) therefore does not operate as an exception that allows providersArticle 3(3) AI Act: ‘provider’ means a natural or legal person, public authority, agency or other body that develops an AI system or a general-purpose AI model or that has an AI system or a general-purpose AI model developed and places it on the market or puts the AI system into service under its own name or trademark, whether for payment or free of charge. to claim that a model remains outside the scope of the AI Act merely because it is still under development. Instead, it establishes a narrowly circumscribed temporal enforcement clarification that applies only for as long as a model has not entered the scope of the Act through the applicability triggering mechanisms – notably by being placed on the marketArticle 3(9) AI Act: ‘placing on the market’ means the first making available of an AI system or a general-purpose AI model on the Union market. (or, potentially, put into serviceArticle 3(11) AI Act: ‘putting into service’ means the supply of an AI system for first use directly to the deployer or for own use in the Union for its intended purpose.).²⁶⁷ In this sense, Article 2(8) AI Act does not create a substantive derogation. Rather, it reinforces and makes explicit the temporal limitations that already follow from Article 2(1)(a) concerning the conditions under which the AI Act becomes applicable.