EU AI Act Article 5: Prohibited AI Practices Explained

Overview of Prohibited AI Practices

Article 5 of the EU AI Act (Regulation 2024/1689) establishes an absolute prohibition on certain AI practices that are considered to pose an unacceptable risk to fundamental rights, safety, and democratic values. These are the most restrictive provisions in the entire regulation, reflecting the EU legislature's determination that certain uses of AI technology are incompatible with European values regardless of any safeguards that might be applied.

The prohibitions under Article 5 became applicable on February 2, 2025, making them the first substantive obligations to take effect under the EU AI Act. Any organisation that continues to develop, place on the market, put into service, or use AI systems falling within these categories is in violation of the regulation and subject to the highest tier of penalties: up to EUR 35 million or 7 percent of total worldwide annual turnover, whichever is greater.

Social Scoring Systems

Article 5(1)(c) prohibits AI systems used by public authorities, or on behalf of public authorities, for the evaluation or classification of the trustworthiness of natural persons over a period of time based on their social behaviour or known, inferred, or predicted personal or personality characteristics. The prohibition specifically targets scoring that leads to detrimental or unfavourable treatment of those persons in social contexts unrelated to the contexts in which the data was originally generated or collected, or treatment that is unjustified or disproportionate to their social behaviour or its gravity.

This prohibition addresses concerns about government-run or government-commissioned systems that aggregate data about individuals from various sources to produce a score or classification that then affects their access to services, opportunities, or freedoms. The provision targets the systematic and ongoing nature of such assessment rather than individual, one-off evaluations.

Private sector social scoring is not explicitly covered by this prohibition. However, private organisations that develop or use similar systems may still face obligations under other provisions of the regulation, particularly if their systems qualify as high-risk under Article 6 and Annex III.

Subliminal Manipulation and Exploitation of Vulnerabilities

Article 5(1)(a) prohibits the placing on the market, putting into service, or use of AI systems that deploy subliminal techniques beyond a person's consciousness, or purposefully manipulative or deceptive techniques, with the objective or effect of materially distorting the behaviour of a person or group of persons by appreciably impairing their ability to make an informed decision, thereby causing or being reasonably likely to cause significant harm.

Article 5(1)(b) addresses AI systems that exploit vulnerabilities of specific groups. It prohibits AI systems that exploit any of the vulnerabilities of a natural person or a specific group of persons due to their age, disability, or a specific social or economic situation, with the objective or effect of materially distorting their behaviour in a manner that causes or is reasonably likely to cause significant harm to that person or another person.

These provisions recognise that AI systems can be designed or used to influence human decision-making in ways that are not transparent and that specifically target people who may be less able to resist such influence. The key threshold is that the manipulation must materially distort behaviour and cause or be likely to cause significant harm. Not all persuasive AI falls within scope, only systems that cross the line into causing genuine detriment.

Real-Time Remote Biometric Identification

Article 5(1)(h) prohibits the use of real-time remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement, subject to specific exceptions. This is one of the most debated provisions in the regulation. Real-time remote biometric identification refers to systems that can identify individuals at a distance, without their active participation, as they move through public spaces such as streets, shopping centres, or transport hubs.

The regulation provides three narrow exceptions where real-time remote biometric identification may be used by law enforcement. The first exception is the targeted search for specific victims of abduction, trafficking in human beings, or sexual exploitation, as well as the search for missing persons. The second is the prevention of a specific, substantial, and imminent threat to the life or physical safety of natural persons, or a genuine and present or foreseeable threat of a terrorist attack. The third is the localisation or identification of a person suspected of having committed a criminal offence punishable in the member state concerned by a custodial sentence or detention order for a maximum period of at least four years, for the specific criminal offences listed in Annex II.

Even where these exceptions apply, their use requires prior authorisation by a judicial authority or an independent administrative authority of the member state in which the use is to take place. In duly justified cases of urgency, use may begin without prior authorisation provided that authorisation is requested without undue delay, at the latest within 24 hours.

Emotion Recognition and Predictive Policing

Article 5(1)(f) prohibits AI systems that infer emotions of a natural person in the areas of workplace and education, except where the AI system is intended to be put into service or used for medical or safety reasons. This prohibition recognises that emotion recognition technology in employment and educational settings poses particular risks to the rights and freedoms of workers and students, who are in positions of subordination and may not be able to freely refuse such monitoring.

Article 5(1)(d) prohibits AI systems that perform risk assessments of natural persons in order to assess or predict the risk of a natural person committing a criminal offence, based solely on the profiling of a natural person or on assessing their personality traits and characteristics. This prohibition does not affect AI systems used to support the human assessment of the involvement of a person in a criminal activity, which is already based on objective and verifiable facts directly linked to a criminal activity.

Article 5(1)(e) prohibits AI systems that create or expand facial recognition databases through the untargeted scraping of facial images from the internet or CCTV footage. This provision addresses the practice of collecting facial images without consent or legal basis to build reference databases for biometric identification purposes.

Compliance and Enforcement

Organisations must conduct a thorough review of all AI systems they develop, deploy, or use to determine whether any fall within the scope of Article 5 prohibitions. This assessment should be documented and regularly updated as AI systems evolve or new systems are introduced.

Where an AI system is found to fall within a prohibited category, the organisation must immediately cease its development, deployment, or use. There is no grace period or transition mechanism for prohibited practices. The February 2, 2025 deadline has already passed, and enforcement is active.

National market surveillance authorities are responsible for enforcing the prohibitions. Under Article 99, violations of Article 5 are subject to administrative fines of up to EUR 35 million or, if the offender is an undertaking, up to 7 percent of its total worldwide annual turnover for the preceding financial year, whichever is higher. These are the highest fines in the regulation and among the highest in any EU regulatory framework.

Organisations should pay particular attention to AI systems that may not have been designed with prohibited purposes in mind but that could be adapted or used in ways that fall within the scope of Article 5. The regulation focuses on both the objective and the effect of the AI system, meaning that even unintended outcomes can trigger the prohibitions if they meet the statutory criteria.

This article is for informational purposes only and does not constitute legal advice. Regulatory requirements change frequently — verify current rules with official sources. Built by Sawai Gyoseishoshi Office, Hiroshima, Japan.