Delegation of Powers

Legal Framework

The exercise of delegated powers under the AI Act is governed primarily by Article 97 (the general delegation provision), operationalised through several sector-specific articles. Article 7 empowers the Commission to adopt delegated acts amending Annex III — the list of high-risk AI use-cases — subject to dual conditions: the system must fall within an existing Annex III area, and its risk must be equivalent to or greater than already-listed systems. Article 108 extends delegated and implementing powers into sectoral product-safety legislation, embedding AI Act requirements into existing conformity-assessment regimes.

"When adopting delegated acts pursuant to paragraphs 1 and 2 concerning Artificial Intelligence systems which are safety components within the meaning of Regulation (EU) 2024/1689, the requirements set out in Chapter III, Section 2, of that Regulation shall be taken into account."
— AI Act Art. 108

Article 112 ties the Commission's ongoing review obligation to the delegation's temporal scope, requiring annual assessment of Annex III and prohibited-practice lists:

"until the end of the period of the delegation of power laid down in Article 97"
— AI Act Art. 112

Key Developments

No court rulings yet interpret the AI Act's delegation framework. The practical thresholds must therefore be drawn from the statutory text itself. Article 7 sets two cumulative gateways for delegated amendment of Annex III, supplemented by six assessment criteria in paragraph 2 — including intended purpose, autonomy, demonstrated harm, and the nature of data processed. Article 6 provides a downstream filter: even Annex III-listed systems may be excluded from high-risk classification where they pose no significant risk, narrowing the practical reach of any delegated act.

Status of the Debate

This topic is contested in principle, though not yet in litigation. The delegation framework's boundaries — particularly the equivalence threshold in Article 7(1)(b) and the interaction between delegated acts under Article 97 and implementing acts under Article 108 — remain doctrinally unsettled. The Commission enjoys broad discretion, but the six assessment criteria in Article 7(2) create justiciable constraints. A future challenge could test whether a delegated act adding an Annex III use-case satisfied the equivalence requirement with sufficient evidentiary grounding. Resolution would likely require a CJEU preliminary reference on the standard of judicial review for delegated acts under the AI Act, analogous to the Mentel or Estonia line of cases on delegated legislation.

Practical Guidance

• Map delegation touchpoints: Identify whether your AI system falls within Annex III areas or within Annex I product-safety regimes, as this determines which delegated or implementing acts may affect your compliance obligations.
• Monitor Article 7 amendments: Track the Commission's annual Annex III assessments under Article 112, as new use-cases may reclassify your system as high-risk.
• Assess equivalence arguments: If a delegated act adds your use-case to Annex III, evaluate whether the six criteria in Article 7(2) were adequately addressed — this forms the primary basis for challenge.
• Track Article 108 sectoral integration: For AI systems that are safety components in aviation, maritime, or rail products, delegated and implementing acts will embed AI Act Chapter III requirements into existing conformity assessments.
• Prepare for temporal limits: The delegation period under Article 97 is finite; compliance strategies should not assume indefinite delegated-act coverage without monitoring renewal or expiry.