Recital 44
Artificial Intelligence Act · UE 2024/1689
| (44) | There are serious concerns about the scientific basis of AI systems aiming to identify or infer emotions, particularly as expression of emotions vary considerably across cultures and situations, and even within a single individual. Among the key shortcomings of such systems are the limited reliability, the lack of specificity and the limited generalisability. Therefore, AI systems identifying or inferring emotions or intentions of natural persons on the basis of their biometric data may lead to discriminatory outcomes and can be intrusive to the rights and freedoms of the concerned persons. Considering the imbalance of power in the context of work or education, combined with the intrusive nature of these systems, such systems could lead to detrimental or unfavourable treatment of certain natural persons or whole groups thereof. Therefore, the placing on the market, the putting into service, or the use of AI systems intended to be used to detect the emotional state of individuals in situations related to the workplace and education should be prohibited. That prohibition should not cover AI systems placed on the market strictly for medical or safety reasons, such as systems intended for therapeutical use. |
In Luxembourg, any system involving employee monitoring, even if exempt under the AI Act for medical or safety reasons, remains subject to article L.261-1 of the Labour Code: prior information and consultation of the staff delegation, and prior CNPD authorisation for high-risk processing. The law of 1 August 2018 on the CNPD and the Labour Code thus stack on top of the AI Act regime and cannot soften it.
Luxgap practice: before any exceptional use (such as drowsiness detection for drivers or security agents), trigger the L.414-9 codecision procedure and build a CNPD file demonstrating strict proportionality to the safety purpose.
