European Commission advances view that AI Act applies in Northern Ireland

(Photo credit: www.niassembly.gov.uk)

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On 24 March 2025, the European Commission published a proposed negotiating position for the Council of the EU to adopt on the application of the European Union (EU) AI Act (“AIA”) in Northern Ireland (the “Proposal”).

The Proposal sets out a draft decision to be taken by both the UK and the EU that the AIA should take effect in Northern Ireland with respect to products and services that relate to products. This draft decision is still a proposal at this stage, but it could have important implications for the commercial and political arrangements in Northern Ireland. 

In this article, we are going to explore what this all means.

Why this matters - the historical and legal context

Northern Ireland is a region within the United Kingdom (UK) made up of six counties in the north of the island of Ireland. It shares a land border with the Republic of Ireland, which is its own sovereign state and is made up of the remaining 26 counties on the island of Ireland.

Since the partition of Ireland in 1920, this land border has been the subject of an often violent dispute between those living in Northern Ireland who maintain a British identity (the “Unionists”) and those living in Northern Ireland who maintain an Irish identity (the “Nationalists”). This period in Irish history, known as The Troubles, largely drew to a close with the 1998 Good Friday Agreement (the “GFA”) which established a fragile, yet enduring peace.

The land border remains a contentious subject to this day. During The Troubles, the border was subject to checkpoints and army patrols (which enraged the Nationalists), while today it is porous and non-descript. This soft, understated border is seen as key to preserving peace in Northern Ireland, and the overwhelming majority of the population in Northern Ireland wish to see that peace (and the prosperity the region has enjoyed since the GFA) hold.

In the 2016 EU Referendum, the UK voted to leave the EU. The practicalities around how this would actually take place were set out in the 2020 Withdrawal Agreement between the UK and the EU. As part of the withdrawal process, the UK left the European single market, which facilitates the free market of goods, services, capital and people.

The withdrawal from the single market was of crucial importance from a Northern Ireland perspective because, unlike the rest of the UK, it shares a land border with the EU (via the Republic of Ireland, which is an EU Member State). Preservation of the soft nature of this border was seen as crucial to maintaining peace in Northern Ireland and it formed one of the key negotiating points throughout the withdrawal process. However, this desire to preserve peace must also be balanced with the need to maintain the borders of the EU single market to ensure unauthorised goods cannot enter.

This was a sticking point throughout the withdrawal negotiations and eventually, following various iterations to try and reach a lasting solution to this problem throughout the withdrawal process, the UK reached an agreement with the EU to address the impasse. The compromise, which is set out a part of the withdrawal agreement called the Northern Ireland Protocol (the “NIP”), was that Northern Ireland would largely remain in the single market for goods, but would leave the single market for services, capital and people. Rather than conducting border checks at the land border with the Republic of Ireland, checks would be conducted at ports of entry between Northern Ireland and the rest of the UK.

This was an uncomfortable compromise for the Unionists in Northern Ireland. The concept of regulatory divergence from the rest of the UK, along with border checks between NI and GB, is not particularly well-liked in Unionist communities. However, it is generally seen as the lesser of two evils when compared to the return of physical checks on the border with the Republic of Ireland and the largely inevitable violence that this would have resulted in. Through the 2023 Windsor Framework, the UK government was able to present additional policies favourable to the Unionist population in order to secure agreement from Northern Ireland’s local political system and establish an enduring resolution.

One of these additional policies, known as the Stormont Brake, gives the Northern Ireland assembly power to object to the application of some (but not all) updated or amended EU laws that would have otherwise applied automatically in Northern Ireland. Crucially, the Stormont Brake does not apply to new laws such as the AIA.

What does all this have to do with the AIA?

For a new EU law such as the AIA to take effect in Northern Ireland, it must be added to the list of regulations set out in Annex 2 of the NIP. To be added to this Annex, the AIA must be approved via mutual consent at either an annual or an extraordinary meeting of the EU-UK Joint Committee. 

This Proposal from the Commission intends to do exactly that, and as a result it could have both practical ramifications for businesses in Northern Ireland and substantial political ramifications for UK-EU relations. Note that it’s not entirely surprising that the Commission wishes to see the AIA added to the list of effective EU laws in Northern Ireland, given their goal of ensuring the security of the single market.

To understand these ramifications, we need to understand how the AIA might currently apply in Northern Ireland, and how this Proposal might change that.

1. How AI would have been regulated in NI before this Proposal

A handful of provisions from the AIA indirectly apply in Northern Ireland in a very limited way. This is a complicated and technical area of European/ UK law, so bear with us!

Articles 103 to 107 and 109 of the AIA amended some existing EU laws which are currently in effect in Northern Ireland. The Stormont Brake was not exercised in respect of these changes, and therefore the amended paragraphs were added to the specified EU laws. As a result, these amended paragraphs (originally set out in the AIA but now incorporated into the underlying laws) are currently in effect in Northern Ireland.

These amended paragraphs specify that, when adopting certain delegated legislation/ standards with respect to ‘artificial intelligence systems which are safety components’, the AI Act’s requirements on high-risk AI systems ‘shall be taken into account’ by the Commission. What this means in practice is that, if the Commission makes any updates to these laws (which currently apply in Northern Ireland), they will have to take account of the AIA’s provisions on high-risk AI systems. Depending on how that is interpreted in any delegated legislation/ standards, aspects of the AIA’s provisions on high-risk AI systems may take effect in Northern Ireland. However, as at the date of writing (March 2025), the Commission has not made any changes to these safety component laws through delegated acts.*

Therefore the tl;dr of all this is that none of the operative provisions of the AIA are currently in force in Northern Ireland, but they could take indirect effect in the future.

2. How AI may be regulated in NI if this Proposal is adopted?

If adopted by the joint committee, the proposal will mean that the aspects of the AIA that relate to the technical specifications for products placed on the market (or services relating to the placement of products on the market) will take direct effect in Northern Ireland. Practically speaking, this means that a much wider range of AI systems could be directly subject to the provisions of the AIA in Northern Ireland.

The current position set out above is convoluted (... to say the least!), so by explicitly applying aspects of the AIA in Northern Ireland, could this Proposal help add some additional legal certainty? It sounds great in theory, but the reality is likely quite different. The AIA was not drafted with such a clear delineation between goods and services in mind, and working through (and/ or drafting around) all of the permutations of the different roles and obligations the AIA imposes just isn’t practical. Trying to draw the line between what is a good (or good-related service) and what is a service, while applying the AIA in practice, may raise more questions than this Proposal solves.

This is all very interesting from a legal perspective but from a more practical viewpoint, it may not actually matter too much at all for Northern Ireland businesses.

What does it mean in practice?

The commercial reality here is that, whether the AIA applies in Northern Ireland or not may have little impact on day-to-day business operations in the region. Any business working with AI in the region (and, in fact, the rest of the UK) is likely also working with customers in Europe. The Brussels Effect means that these businesses will already be complying with European law and will continue to do so regardless of whether the AIA directly applies in Northern Ireland or not. Digital goods and services can travel borders easily, and one of Northern Ireland’s largest trading partners is the Republic of Ireland (a member of the EU subject to the AIA).

Rather the implications of this may be more political in nature. Unionist politicians are keen to oppose any further regulatory divergence between Northern Ireland and the rest of the UK. In January 2025, the UK government rejected a Unionist attempt to pull the Stormont Brake in relation to a change to EU chemical labeling. Given the high profile nature of the AIA, and the fact that the Stormont Brake is not available for new EU laws such as this, the Proposal may put additional pressure on Northern Ireland’s already-fragile political infrastructure.

What’s next?

Assuming the Council does adopt the position set out in the Proposal, the next step is a joint committee meeting between the UK and the EU. The committee last met in May 2024 and it is required to meet at least once a year (a separate, specialised committee meets more frequently for other business), so we expect the annual meeting to take place in the next few months. At that meeting, we expect that the EU will advance the position set out in the Proposal that the AIA should apply in Northern Ireland with respect to goods, and services related to goods.

There is currently no indication as to how the UK government (and the wider political institutions in Northern Ireland) will respond to the Proposal. However, given the joint nature of the decision making process at the committee level, we see it as quite unlikely that the Commission would have made this Proposal without first running it past the UK government through diplomatic channels for an initial sounding. We suspect the UK has given some assurances behind the scenes that this approach is acceptable (hence why the Proposal has now been made public), so there is a good chance that the Proposal may make some progress.

Here at Enzai, we will keep you updated.

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‍* Note for completeness that the EU has separately updated its existing product safety directive through the General Product Safety Regulation 2023/988 (“GPSR”). The GPSR is in effect in Northern Ireland, and aspects of this regulation do cover AI (separately from the AIA).

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