Executive Summary
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On 19 May 2026, the European Commission published draft guidelines on the classification of AI systems as “high-risk” under the EU’s AI Act (the Guidelines). Providing or deploying an AI system classified as high-risk triggers the AI Act’s core compliance obligations, such as obligations to maintain technical documentation and enable human oversight.
Although not strictly binding, the Guidelines are likely to influence AI Act regulators’ interpretation of the AI Act and enforcement priorities. The Guidelines are open for consultation until 23 June 2026.
The Commission’s publication of the Guidelines follows the European Parliament’s and European Council’s provisional agreement earlier in May to delay the compliance deadlines for high-risk AI system obligations, which are now expected to come into force in phases starting on 2 December 2027 (see our previous client alert on that agreement).
Under the AI Act, an AI system is high-risk if it is intended to be used:
Below we set out some key takeaways from the Commission’s guidance on the application of these criteria.
Intended use: AI systems’ classification as high-risk depends on their “intended use.”
The intended use of a system may be inferred from a broad range of materials, including promotional materials and technical documentation. Contract terms to the effect that an AI system must not be used for high-risk purposes will not (on their own) be enough to prevent an AI system being classified as high-risk if other materials suggest that the system is intended to be used for high-risk purposes.
A “safety component” is a component:
Recruitment: AI systems are high-risk if intended for use “for recruitment or selection” of job candidates or to make work-related decisions, such as promotion decisions.
The concept of using a system for “recruitment or selection” is wide and can include, for example, AI systems used to generate job descriptions or used to analyse candidates’ CVs and generate “suitability” scores, even if the final hiring decision is made by a human recruiter.
Likewise, the concept of “work-related decisions” is broad and includes, for example, decisions about pay and conditions, performance evaluations and promotions, and allocation of tasks based on previous performance metrics (e.g., assigning work shifts to individuals who historically have the highest punctuality). However, decisions must “reach a threshold of significance” so, for example, decisions on the “allocation of office space and … lunch time” are not high-risk under the AI Act.
The concept of “critical infrastructure” in the AI Act should be interpreted as referring to the essential services of entities that have been designated as critical under the EU’s Critical Entities Resilience Directive.
“Essential services” are services “necessary for people to fully participate in society or to improve their standard of living,” such as housing, electricity, water, telecommunications, transport, and basic financial services such as bank accounts and mortgages.
Not all financial services are essential. For example, stock trading and premium credit cards are not “essential” financial services.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.
© Skadden, Arps, Slate, Meagher & Flom LLP
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