! High compliance impact for SMEs
WHAT THE ARTICLE IS ABOUT
The individual’s right to understand AI decisions that affect them
Article 86 establishes an individual transparency right — the right for any natural person significantly affected by a decision made by a high-risk AI system listed in Annex III to obtain a clear and meaningful explanation of the decision. It applies to decisions affecting health, safety or fundamental rights, and places the explanation obligation on deployers who operate the AI system.
WHAT IT SAYS
Affected persons can request explanations — deployers must provide them
- Any natural person subject to a decision made using a high-risk AI system listed in Annex III that produces legal effects or similarly significantly affects them in a way that they consider to have an adverse impact on their health, safety or fundamental rights has the right to obtain an explanation
- The explanation must be clear and meaningful — it must enable the person to understand the decision and exercise their rights
- The right applies to decisions in the areas covered by Annex III: biometrics, critical infrastructure, education, employment, essential services, law enforcement, migration and justice
- The deployer of the high-risk AI system must provide the explanation — it is a deployer obligation, not a provider obligation
- The right does not apply where it is already provided for under other Union law — particularly GDPR’s right to explanation for automated decisions under Article 22
- Member states may restrict the right in specific circumstances provided for by Union or national law — particularly for law enforcement and national security
WHO IS AFFECTED
Deployers of Annex III high-risk AI systems and the individuals they affect
- Deployers of high-risk AI systems in Annex III areas — they must be able to explain AI decisions to affected individuals on request
- Natural persons who have been subject to consequential AI decisions — they have the right to request explanations
- Providers — they must design systems that enable deployers to provide meaningful explanations (linked to Article 13 transparency obligations)
- Law enforcement, migration and asylum authorities — subject to restrictions on the explanation right
WHAT IT MEANS FOR SMES
Build explainability into your system — both as provider and deployer
- If you deploy high-risk AI systems in Annex III areas — employment screening, credit scoring, essential services allocation — you must be able to respond to individual explanation requests; ensure your AI system can produce meaningful decision rationales
- If you build high-risk AI systems: your transparency obligations under Article 13 (providing information to deployers) directly enable Article 86 compliance downstream — a deployer cannot explain a decision they do not understand themselves
- The overlap with GDPR Article 22 (automated decision-making) is significant — many AI decisions that trigger Article 86 also trigger GDPR obligations; ensure your explanation framework covers both
- Document your explanation capability as part of your compliance documentation — market surveillance authorities and complainants may request evidence that you can actually provide meaningful explanations
- The phrase ‘clear and meaningful’ sets a qualitative bar — an opaque technical output is not sufficient; the explanation must be understandable to a non-technical person
Related Articles
- Article 13 — Transparency (providers must supply information enabling deployers to explain decisions)
- Article 26 — Deployer obligations (explanation requests are part of deployer accountability)
- Article 85 — Complaint right (if an explanation is refused or inadequate, a complaint may follow)
- Annex III — High-risk systems (the systems whose decisions are covered by this right)
