Series: AI Act and impact on Swiss entrepreneurs (1)

The EU AI Act does not apply directly in Switzerland, but it does have an impact on local entrepreneurs who want to sell AI systems in the EU in particular. We explain what you need to look out for and which deadlines apply, and provide our top 3 takeaways.

1 What is an AI system?

Not everything that says AI on it contains AI. Art. 3 para. 1 of the AI Act defines an AI system as

a machine-based system that is designed to operate with varying degrees of autonomy and that can be adaptive once operational and that derives from inputs received for explicit or implicit goals how to produce outputs such as predictions, content, recommendations or decisions that can affect physical or virtual environments

It follows from this definition and recital (EC) 12 that an essential feature of AI systems is the ability to deduce. This capability goes beyond simple data processing in that the AI system enables learning, reasoning and modeling processes, acting to a certain extent independently of human intervention. An AI system is capable of learning and can be used independently or as part of a product.

2nd area of application

The AI Act applies directly as a regulation in all member states and does not need to be transposed into national law. As Switzerland is not an EU member state, the AI Act is therefore not directly applicable in Switzerland. Nevertheless, Swiss companies may also be covered by the scope of application of Art. 2 of the AI Act; the EU legislator intends to prevent circumvention of the regulation with this comprehensive regulation. For some areas, there is no scope of application - anyone operating in this field is therefore not subject to the strict requirements of the AI Act. As the delimitation can be difficult, we recommend a legal review in order to avoid sanctions and fines.

3. timeline:

The provisions of the AI Act come into force on different dates. The next "touchpoint" is February 2, 2024from which

  • According to Art. 5 of the AI Act, various practices and AI systems are prohibited in the EU, including for influencing people, discrimination, predictive profiling, facial recognition

  • According to Art. 4 of the AI Act, there is an obligation to train employees in AI competence

Further obligations and key regulations, including on penalties, will come into force on August 2, 2025 . We will report on this separately.

In Switzerland, there is no legal requirement to acquire AI skills, nor are systems prohibited under the AI Act permitted to be used unless they are independently prohibited. Nevertheless, we recommend the provision of AI skills. Both board members and employees should be familiar with the use of AI systems, also to prevent trade and business secrets from being used negligently to train AI systems.  

 

TOP 3 Take-Aways:

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If you have any questions regarding the implementation of the AI Act, the introduction and development of AI systems or AI training for CEOs, board members or employees, please contact Sven Kohlmeier, lawyer and specialist lawyer for IT law.

Sven Kohlmeier