Inferential Capability Does Not Determine Legal Scope

The European AI Act is the first comprehensive regulation of artificial intelligence (AI), setting out extensive obligations, particularly for so-called high-risk and general-purpose AI systems. A key distinguishing feature of AI systems under the AI Act is the capability to infer. Since the AI Act does not clearly define what inference is, there is a gray area for certain data-driven systems. A specific example is credit scoring systems, which are listed by Annex III of the AI Act. At the same time, however, these are often implemented using statistical models for which it is unclear whether they have the capability to infer and thus fall under the AI definition of the AI Act at all. Motivated by statistical learning theory, this work develops a framework for grading different levels of the capability to infer. Based on the AI Act and the Commission Guidelines on the definition of an artificial intelligence system, we analyze which levels constitute sufficient capability to infer within the meaning of the AI Act and where further regulatory clarity is needed. We illustrate the framework by creating two realistic credit scoring workflows and show whether and where inference occurs in them. Our analysis illustrates that not only individual models but the entire data processing workflow must be considered. It also shows that the involvement of human experts during development can have significant influence on the capability to infer. Code can be found at https://github.com/fraunhofer-iais/inference-framework-creditscorecards.

Compute governance today is a governance of training: the thresholds, reporting requirements, and frontier-AI regimes now in force attach to training compute and treat the trained model as the regulatory unit. That picture is incomplete: capability increasingly migrates to the deployment stage through inference-time scaling, agentic scaffolding, and compression onto consumer hardware. This paper asks which mechanisms are available once the regulatory object shifts from the training run to the inference call. We develop a feasibility taxonomy of twenty inference-time mechanisms across monitoring, verification, and enforcement, each rated on a four-point readiness scale against a documented four-vendor evidence base. We then stress the taxonomy against a two-dimensional adversary model (three capability tiers crossed with four adversary roles) and map each mechanism to four governance scenarios (domestic regulation, bilateral or multilateral coordination, industry self-regulation, and compute-marketplace governance). Fifteen of the twenty mechanisms have commercial technical substrates in production today, although governance-grade assurance and adversarial robustness vary substantially. The adversary analysis shows that this readiness holds only against a cooperative deployer and a low-to-medium-capability user: no mechanism rates adequate against a high-capability state-level deployer, and fine-tuning removes the model-internal components of the enforcement cluster, although platform-external controls can persist. A substitution analysis connects the taxonomy to a companion hardware paper as a conditional substitution principle describing when inference-stage and hardware-stage mechanisms provide comparable regulatory coverage under stated conditions. A second-rater reliability check on a random subset of the readiness ratings returned a quadratic-weighted Cohen's kappa of 0.74.

When algorithms make or influence consequential decisions---about loan eligibility, hiring, or healthcare---EU law grants affected individuals a Right to Explanation. Yet whether (and how) Explainable AI (XAI) can satisfy this right in practice remains poorly understood, with direct implications for individuals' ability to contest automated decisions that affect their lives. This paper presents a systematic literature review of XAI in the context of the EU Right to Explanation, with particular focus on Art. 15(1)(h) GDPR, Art. 86 AI Act (AIA), and related instruments. We consider papers published from 2024 onwards, as the final version of the AIA was published in July 2024---with Art. 86 being added late. From 2643 initial records identified by a deliberately broad search, we review 57 full texts, of which only 19 papers demonstrate substantive integration of both legal and technical perspectives, showing gaps in the interdisciplinary synthesis of the current regulatory framework. We document three problematic patterns across the corpus: Most misidentify the GDPR legal basis; few engage with the CJEU's Dun & Bradstreet judgment (likely due to publication timing); and the distinction between explanation form (governed by addressee) and content (governed by legal purpose) is often conflated. We conceptualize this as the Addressee/Purpose Framework, propose a four-phase blueprint for operationalization, and identify six concrete open research questions. Without further progress, the Right to Explanation risks remaining a formal obligation without a technically realizable path to compliance.