Right to Explanation

Legal Framework

The right to explanation is governed primarily by Article 86 of the AI Act, which establishes a standalone right for individuals affected by decisions made on the basis of high-risk AI systems listed in Annex III (excluding point 2 thereof). Under Article 86(1), any person subject to a decision taken by a deployer that produces legal effects or similarly significantly affects them in a way they consider adverse to their health, safety, or fundamental rights may demand an explanation. The deployer must provide "clear and meaningful explanations of the role of the AI system in the decision-making procedure and the main elements of the decision taken."

"shall have the right to obtain from the deployer clear and meaningful explanations of the role of the AI system in the decision-making procedure and the main elements of the decision taken"
— AI Act Art. 86(1)

Recital 171 clarifies that the explanation must serve an enabling function — it is not merely informational but must empower the affected person to act:

"That explanation should be clear and meaningful and should provide a basis on which the affected persons are able to exercise their rights."
— AI Act Rec. 171

Article 86(3) introduces a subsidiarity principle — the right applies only where existing Union law does not already provide an equivalent mechanism:

"This Article shall apply only to the extent that the right referred to in paragraph 1 is not otherwise provided for under Union law."
— AI Act Art. 86(3)

This means where GDPR Article 22 already guarantees the right to human intervention, to express one's view, and to contest a solely automated decision, Article 86 does not duplicate that protection. National or Union-law exceptions may also displace the obligation.

Key Developments

The EDPB has signalled that AI model processing may trigger Article 22 GDPR obligations, reinforcing the interface between the two regimes:

"The processing operations conducted in the context of AI models may fall under the scope of Article 22 GDPR"
— EDPB Opinion 28/2024 §22

This indicates that, until Article 86 becomes fully applicable, the GDPR's automated decision-making provisions function as the operative transparency mechanism. Dutch courts have begun engaging with GDPR-based claims involving automated processing, though no ruling has yet directly interpreted the AI Act's explanation right.

Status of the Debate

This topic is developing — no dominant doctrinal pattern has emerged. Article 86 AI Act is a novel provision without implementing guidance, regulatory practice, or case law interpreting its thresholds. The central open questions are: what constitutes a "clear and meaningful" explanation sufficient to enable rights exercise; how "the main elements of the decision" should be delineated; how the subjective trigger — the affected person's own assessment of adverse impact — interacts with objective review standards; and where the boundary between Article 22 GDPR and Article 86 AI Act lies when both may apply. Resolution will likely require CJEU interpretation or EDPB guidance clarifying whether Article 86 extends beyond Article 22's scope or merely restates it.

Practical Guidance

• Map Annex III systems: Deployers using high-risk AI systems under Annex III (except point 2) must prepare explanation procedures covering the AI system's role and the decision's main elements before the AI Act's application date.
• Prepare explanation templates: Explanations must enable rights exercise — describe what the AI system did, what data was processed, what the output was, and how it informed the final decision.
• Assess subsidiarity with GDPR: Where Article 22 GDPR already provides explanation rights for solely automated decisions, Article 86 does not add an additional layer. Identify gaps between the two regimes.
• Monitor the subjective trigger: The right activates when the affected person considers the impact adverse. Deployers should not assume silence means no obligation.
• Track national law exceptions: Where Union or national law provides exceptions or restrictions, document the legal basis and ensure proportionality.