The classic trap
Annex II shuts the door on mass real-time remote biometric identification: only 16 categories of very serious offences justify the exception. The trap for law enforcement, stadium and station operators, shopping centres and their tech vendors is to assume facial recognition can be deployed 'just in case'. The EU AI Office and, for the personal data dimension in Luxembourg, the CNPD, will treat as prohibited any use that does not strictly map, file in hand, to one of these 16 offences, with prior judicial authorisation and an article 27 FRIA. B2B vendors selling video analytics to public or private clients are on the front line: if their product can technically operate outside the Annex II scope, it qualifies as a prohibited practice under article 5.
The Annex II reading grid: 16 offences, 4 operational families
To correctly qualify a use case, Luxgap groups the 16 offences into 4 families that match real audit scenarios:
- Terrorism and cross-border organised crime: terrorism, participation in a criminal organisation, trafficking in weapons, munitions, explosives, nuclear or radioactive materials, sabotage.
- Serious offences against persons: trafficking in human beings, sexual exploitation of children and child pornography, murder, grievous bodily injury, rape, kidnapping, illegal restraint, hostage-taking, illicit trade in human organs or tissue.
- Illicit trafficking in substances and goods: narcotic drugs, psychotropic substances, organised or armed robbery, unlawful seizure of aircraft or ships.
- International and environmental crimes: crimes within the jurisdiction of the International Criminal Court, environmental crime.
Any other offence, however serious under Luxembourg national law (aggravated fraud, plain money laundering, cigarette trafficking, customs offences...), falls outside Annex II. Real-time remote biometric identification is therefore prohibited, full stop.
Practical pitfalls for Luxembourg actors
- Selling a video analytics solution to a client (municipality, car park, event venue) without technically locking the use cases to Annex II makes the vendor co-liable for the prohibited practice.
- Requalification risk: a system marketed as 'simple flow counting' that can be switched to facial recognition tips into prohibited practice the moment it is technically capable of identifying.
- The prior judicial authorisation must explicitly reference the Annex II offence targeted, not a generic 'public security' formula.
- AI Act penalty: up to EUR 35 million or 7% of global turnover for prohibited practices under article 5, the highest ceiling in the Regulation.
How Luxgap automates this risk
Our Luxgap Biometric Use-Case Gatekeeper locks down any drift towards a prohibited practice under article 5(1)(h) before it happens: before any remote biometric identification system goes live, the tool simulates each contemplated use case, maps it against the 16 Annex II offences and technically blocks out-of-scope scenarios via a rules engine connected to your video platforms (Milestone XProtect, Genetec, Axis, Bosch BVMS) and your IAM (Azure AD, Okta).
- Analyses each use case submitted by the business and automatically classifies it as 'prohibited', 'high-risk allowed under conditions' or 'outside AI Act scope' against Annex II and article 5.
- Generates the pre-filled prior judicial authorisation file, with the targeted Annex II criminal qualification, the matching Luxembourg legal basis and the article 27 FRIA already initiated.
- Detects via camera integration and SIEM (Microsoft Sentinel, Splunk) any unauthorised activation of a facial recognition module and alerts the DPO and CISO in real time on Teams or Slack.
- Produces a timestamped, cryptographically sealed register of biometric activations with the Annex II offence justifying each session, enforceable before the EU AI Office and the CNPD during an inspection.
- Simulates the 'worst case' scenario for each deployment: what happens if an officer activates recognition mode outside Annex II? The tool estimates financial exposure up to the 7% turnover ceiling.
- Updates the compliance matrix as soon as an Annex II offence is amended by a Commission delegated act.
Available as a complement to a Luxgap DPO or CISO mandate or as a dedicated SaaS module depending on your scope. Request a tailored quote and our teams will prepare a demonstration on your real video use cases, with a free 48-hour blank audit to measure your Annex II exposure before any engagement.