Guidelines on prohibited artificial intelligence (AI) and customs

The annex to the “Communication to the Commission Approval of the content of the draft Communication from the Commission –Commission Guidelines on prohibited artificial intelligence practices established by Regulation (EU) 2024/1689 (AI Act)” [4.2.2025 C(2025) 884 final]  highlights the role plaid by the AI Act in harmonizing the rules for the placing on the market, putting into service, and use of artificial intelligence (‘AI’) in the Union.

This regulation follows a risk-based approach, classifying AI systems into four different risk categories:

(i) Unacceptable risk: AI systems posing unacceptable risks to fundamental rights and Union values are prohibited.

(ii) High risk: AI systems posing high risks to health, safety and fundamental rights are subject to a set of requirements and obligations.

(iii) Transparency risk: AI systems posing limited transparency risk are subject to transparency obligations;

(iv) Minimal to no risk: AI systems posing minimal to no risk are not regulated, but providers and deployers may voluntarily adhere to voluntary codes of conduct.

These Guidelines:

1. aim to increase legal clarity and to provide insights into the Commission’s interpretation of the prohibitions in Article 5 ( which prohibits the placing on the EU market, putting into service, or use of certain AI systems for manipulative, exploitative, social control or surveillance practices, which by their inherent nature violate fundamental rights and Union values) AI Act with a view to ensuring their consistent, effective and uniform application;
2. are non-binding because of any authoritative interpretation of the AI Act may ultimately only be given by the Court of Justice of the European Union (‘CJEU’).

In particular, article 5 of AI Act prohibits: Real-time remote biometric identification (‘RBI’), Biometric categorisation, Emotion recognition, Untargeted scraping to develop facial recognition databases, Individual criminal offence risk assessment and prediction, social scoring, Harmful exploitation of vulnerabilities, harmful manipulation and deception.

AI Act provides that the prohibition does not apply to AI systems used to support the human assessment of the involvement of an economic operator in a customs activity, which is already based on objective and verifiable facts directly linked to a (potential) criminal oer non-compliant activity.

At this regards, the guidelines of AI Act underline that AI systems used by custom authorities to assess the risk of goods entering the EU not complying with the legislation applicable at the border

To identify situations where a customs control should be carried out. Indeed, the AI system assesses objective and verifiable information provided to the customs related to the goods and their supply chains (value, classification, origin and other data). In certain cases, it may also process information about the prior involvement of the importer or exporter in irregularities related to import of goods, their affiliation to criminal organizations or a criminal record for drug trafficking. Such systems are out of scope of the prohibition because any prediction of a likelihood of a natural person to be involved in an import or export of illicit goods is not solely based on profiling, but on objective and verifiable information related to the goods and the importer or exporter’s prior involvement in criminal activity and subject to a human review to determine whether or not the situation requires a customs control or risk mitigation action.

For what is concerning the dual use items compliance, it is interensting to share the following sentences of the guidelines: “ Dual use: “ recital 24 AI Act clarifies that AI systems placed on the market or put into service for an excluded purpose, namely military, defence or national security, and for one or more non-excluded purposes, such as civilian or law enforcement purposes (so called ‘dual use’ systems), fall within the scope of the AI Act. Providers of those systems should ensure that they comply with the requirements in the AI Act”.

Finally, for AEO it is possible to say that AI will heavely impact of the following questions of the self assessment questionnaire (Annex 1° to TAXUD/B2/047/2011-REV6):

1.3.2 “a) How, and by whom, is the tariff classification of goods decided? b) What quality assurance measures do you take to ensure that tariff classifications are correct (e.g. checks, plausibility checks, internal working instructions, regular training)? c) Do you keep notes on these quality assurance measures? d) Do you regularly monitor the effectiveness of your quality assurance measures? e) What resources do you use for tariff classification (e.g. database of standing data on goods)”;

1.3.3 “a) How and by whom is the customs value established? b) What quality assurance measures do you take to ensure that the customs value is correctly established (e.g. checks, plausibility checks, internal working instructions, regular training, other means)? c) Do you regularly monitor the effectiveness of your quality assurance measures? d) Do you keep notes on these quality assurance measures?”;

1.3.4 “a) Give an overview of the preferential or non-preferential origin of the imported goods. b) What internal actions have you implemented to verify that the country of origin of the imported goods is declared correctly? c) Describe your approach in the issuing of proof of preferences and certificates of origin for exportation”;

1.3.5 “Do you deal in goods subject to anti-dumping duties or countervailing duties? If yes, provide details of the manufacturer(s) or countries outside the EU whose goods are subject to the above duties”.

3.5.1 “ Do you have documented procedures for verifying the accuracy of customs declarations, including those submitted on your behalf by, e.g., a customs agent or a freight forwarder? Yes/No. If yes please describe briefly the procedures.If no, do you verify the accuracy of customs declaration? Yes/No. If Yes in what way”

3.5.4 “ a) Are you dealing with goods subject to import and export licenses connected to prohibitions and restrictions? b) Are you dealing with goods subject to other import and export licenses? c) If yes, please specify which type of goods and if you have procedures in place for the handling those licenses”

3.7 protection of computers system and 3.8 “documentation security”.

Therefore, it will be very important to taking into account the impact of the AI in the company processes which directly or indirectly impact on the customs obligations; it implies that the internal procedures and monitoring should reflect the role held by the AI.