The AI Act, adopted on June 13, 2024, imposes a range of obligations on actors involved in the supply chain of high-risk AI systems (for example, and under certain conditions, AI systems used as medical devices or AI systems performing profiling in the field of education or employment). For more details on the classification of AI systems, please refer to our news on the topic.
Providers of high-risk AI systems are primarily concerned. It is not uncommon for them to engage subcontractors to develop and supply the AI system as such, or components thereof.
What is the role of providers and subcontractors?
Providers develop AI systems or have them developed and place them on the market or puts them into service under their own name or trademark. Subcontractors, if any, engaged by providers to develop these systems or their components are covered by the AI Act only to a limited extent. Their sole obligation is to enter into a written agreement with the subcontractor, specifying “the necessary information, capabilities, technical access and other assistance based on the generally acknowledged state of the art, in order to enable the provider […] to fully comply with [its] obligations”. However, this obligation does not apply if the systems or components concerned (other than general-purpose AI models such as GPT or Gemini) are made available to the public under an open-source licence.
How to contractually regulate the relationship between providers and subcontractors?
Beyond compliance, which each operator concerned by the AI Act is responsible for, contracts between the parties are essential for clearly defining responsibilities and guaranteeing effective and secure collaboration. The aim is both (i) to pass on the relevant obligations to upstream actors in the supply chain, and (ii) to define the procedures for implementing the obligations imposed on one actor vis-à-vis another.
Thus, the contract between the provider and the subcontractor of a high-risk AI system should include different clauses. These clauses should in particular cover:
- the necessary information, capacity, technical access and any other assistance to enable the provider to fully comply with the applicable obligations;
- the obligations imposed on the subcontractor (by passing on the relevant obligations of the AI Act imposed on the provider);
- demonstration by the subcontractor of compliance with the imposed obligations;
- cooperation between the parties where necessary, for example when a request for information is made by an authority;
- the procedure to be followed in the event of non-compliance of the system;
- the provision of information and documentation for establishing the quality management system.
Our advice:
As part of your compliance with the AI Act, it is crucial not to underestimate the importance of contracts. They will help secure your position and ensure effective collaboration with the parties involved. Our team of specialists is available to answer your questions and support you in drawing up your contracts.
For more information on the contractual questions raised by AI projects, we invite you to take part in our earlegal training on the topic.