A borderline classification is one where a small change in the facts, the wording, or the interpretation changes the tier: a use that nearly matches an Annex III point, a function that nearly performs profiling, a purpose that nearly changes, or a product function that nearly is a safety component. Borderline cases should be treated as open, the system should not be treated as cleared, and qualified review should be sought from a person with legal and technical competence in the Act, with the full facts and the draft reasoning provided. While the question is open, the deployment should be limited to what the precautionary position allows, and the open question should be owned and dated.
What makes a classification borderline?
A classification is borderline where the Annex III wording is close but not clearly met, where the intended purpose is ambiguous, where the human review is close to rubber-stamping, where profiling is present in one function but not another, where a product function is close to a safety function, or where new guidance or an amendment has changed the wording. Borderline cases are common because Annex III describes uses in general terms and real products are specific. The test for borderline is practical: if a competent reviewer could reasonably reach the opposite conclusion on the same facts, the case is borderline. A team that describes every case as clear, including cases where the wording is genuinely close, is not exercising the judgement the Act requires.
How should a borderline case be handled while it is open?
While a borderline question is open, the system should be handled on a precautionary basis. That can mean limiting the deployment to a pilot with human review, withholding a consequential use, informing the deployer that the classification is under review, or pausing a release. The precautionary handling should be proportionate to the stakes: a borderline recruitment system that affects livelihoods needs stronger limits than a borderline internal tool with no effect on individuals. The open question, the owner, the interim limits, and the date for closing the question should be recorded. A system should not be placed on the market or put into service for the contested use on the basis that review is pending and will catch up later.
For the broader regulatory framework, see high-risk AI systems.
What should qualified review cover?
Qualified review should cover the full classification reasoning: scope, definitions, Article 5 screen, Article 6(1) and 6(2) tests, Article 6(3) filter, Article 50, Chapter V, role analysis under Article 25, and application dates. The reviewer should be given the system description, the intended purpose evidence, the data and workflow, the supplier information, the draft record, and the specific question that is borderline. The review should produce a reasoned conclusion, or a reasoned statement that the question remains open and what further evidence would close it. A review that only states a conclusion, without reasoning, is less useful than a review that shows the wording tested and the facts relied on, because the reasoning is what a later authority will examine.
What evidence helps a reviewer decide?
A reviewer needs the facts that decide the borderline point. For an Annex III borderline, that means the function description, the decision affected, and the Annex III point wording side by side. For a profiling borderline, it means the data, the evaluation of personal aspects, and the output. For a safety component borderline, it means the safety analysis and failure effects. For a purpose borderline, it means the instructions, promotion and actual use compared. The team should prepare a short borderline note that states the two competing readings, the facts that support each, and the consequence of each conclusion, so that the reviewer can decide efficiently and the decision is traceable.
How should the outcome be recorded?
The outcome should be recorded as a revision to the classification record, with the reviewer's name, the date, the reasoning, and any conditions attached to the conclusion. If the conclusion is high-risk, the conformity and documentation work should be planned from that date. If the conclusion is not high-risk, the filter documentation and registration duties should be checked, and the conditions that keep the conclusion valid should be stated as limits on the deployment. If the question remains open, the interim limits should continue, and a new closing date should be set. A borderline case that is closed without a record, or closed by the same team that raised it without independent review, has not been properly resolved.
Continue with Article 6 classification routes.
What is the limit of this guide?
This guide explains how to recognise and handle borderline cases. It does not resolve any borderline case, and it is not a substitute for qualified review. The Act's wording, the Commission guidelines on classification, and the facts of the system together decide the position, and a general guide cannot supply the facts. Where the stakes are high, the wording is close, or the consequence of error is prohibition or a missed high-risk regime, the case should be confirmed with a competent authority or legal adviser, and the system should not proceed on an assumed clearance in the meantime.
Frequently asked questions
Who counts as a qualified reviewer?
A person with legal and technical competence in the AI Act, able to test the classification reasoning against the consolidated text and the facts, and independent enough from the product team to challenge the conclusion. For novel or consequential cases, external legal advice is appropriate.
Can a system be used while classification is under review?
Only within the precautionary limits set for the open question. A contested consequential use should not go live on an assumed clearance. The interim limits, owner and closing date should be recorded.
Does Commission guidance settle a borderline case?
Commission guidelines on Article 6 implementation are an important interpretive aid, but they are not the legal text. The consolidated Regulation, including the annexes, decides the position, and guidance should be checked in its current form alongside the text.
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This article is an informational overview, not a legal determination. Check the current legal text and official implementation guidance for your system and role.
Consolidated Regulation (EU) 2024/1689 ↗AI Act Service Desk timeline ↗European Commission regulatory framework for AI ↗