3.2 Are ANS Within the General Scope of the AIA?
3.2.1 Are ANS "AI systems"?
The AIA applies only to "AI systems", a term legally defined in Article 3(1) of the Act. The European Commission has approved guidelines on how to interpret this definition in practice.(1) The European Commission, 'Approval of the content of the draft Communication from the Commission - Commission Guidelines on the definition of an artificial intelligence system established by Regulation (EU) 2024/1689 (AI Act)' COM (02 February 2025) 924 final (The Guidelines on the Definition of an AI system). Note that the guidelines are only approved and not formally adopted of the Commission as of April 2025. The guidelines explicitly state that they are non-binding, and that the authority to interpret the AIA ultimately lies with the European Court of Justice (CJEU).(2) The Guidelines on the Definition of an AI system, para. 7. However, the very delegation of authority to issue the guidelines implies that they should carry decisive interpretative weight, unless superseded by interpretations from the CJEU or by other binding instruments of EU law.
The European Commission understands Article 3(1) to contain seven elements, although the elements do not necessarily need to be apparent at the same time in the "life" of an AI system.(3) The Guidelines on the Definition of an AI system, para. 10. Pursuant to the guidelines, an AI system is:
"(1) a machine-based system; (2) that is designed to operate with varying levels of autonomy; (3) that may exhibit adaptiveness after deployment; (4) and that, for explicit or implicit objectives; (5) infers, from the input it receives, how to generate outputs (6) such as predictions, content, recommendations, or decisions (7) that can influence physical or virtual environments".(4) The Guidelines on the Definition of an AI system, para. 9.
Requiring the system to be "machine-based" (1), the guidelines recognize a wide range of software and hardware components as being part of the AI system, which will undoubtedly encompass all necessary components of ANS.(5) The Guidelines on the Definition of an AI system, para. 11.
The elements 2 to 7 in the guidelines all refer to the autonomous qualities of the AI system. The general condition of autonomous operation (2) simply refers to the system having "some degree of independence of action", meaning being independent of human leadership.(6) The Guidelines on the Definition of an AI system, para. 14, referring to the AIA Recitals para. 12. This will be the case for ANS, for instance due to the ability of "determination for collision and grounding risk avoidance, ship’s heading, speed and track control".(7) The draft MASS Code Section 4.7. Essentially, ANS will function as the brain of the traditional navigating seafarer, making independent evaluations and decisions based on its existing knowledge or available data.(8) Sivori and Brunton (n 7) 16.
Certain ANS will likely be able to adapt and evolve after deployment (3), and the systems will have explicit objectives (4). Please note that the third element is, in any case, not decisive for considering ANS as AI systems.(9) The Guidelines on the Definition of an AI system, para. 23.
The ANS must be able to infer from the input that they receive (5). Defining ANS as systems with "situational awareness", reacting to what they learn about the surroundings of MASS, they will satisfy the interference element.(10) The draft MASS Code Section 4.7. As the reaction of the systems will take the form of navigational output, such as decisions on change of heading and speed,(11) The draft MASS Code Section 4.7. element number 6 will be satisfied.(12) The Guidelines on the Definition of an AI system, paras. 58 and 59. Finally, ANS will, of course, be able to influence physical environments (7).
In conclusion, ANS will likely be considered "AI systems" under the AIA. In particular, it is the aspects of autonomy, adaptiveness, and interference that will distinguish ANS from INS, which would not be classified as AI systems. Considering the recitals of the AIA, INS will likely be regarded as "simpler traditional software systems" that are "based on the rules defined solely by natural persons to automatically execute operations".(13) The AIA Recitals para. 12.
3.2.2 The requirement for a responsible entity – illustrated by a shipowner
Requirements in the AIA only apply to legal subjects as defined in Article 2(1) of the Act. This provision outlines the roles such subjects must occupy within the AI value chain, such as "providers" or "deployers" of AI systems, and the connection that they must have to the EU in their capacity of those roles.
Since the research question at hand is limited to focus on the substantive scope of the requirements for high-risk AI systems in the general context of commercial cargo shipping, I will not provide discussions on all specific scenarios in which legal subjects may fulfill the criteria set out in Article 2(1). I will limit myself to pointing out that it appears realistic that certain stakeholders in commercial cargo shipping will satisfy these criteria. This can be illustrated through an example of a shipowner.(14) When I refer to a "shipowner", I refer to a legal subject within the Scandinavian concept of a "reder", as described in Thor Falkanger, Hans Jacob Bull and Lasse Brautaset, Scandinavian Maritime Law (4th edn, Universitetsforlaget 2017) Chapter 7.1.
First, a shipowner using an autonomous navigation system in commercial cargo shipping would qualify as a "deployer" of an AI system pursuant to the AIA Article 3(4). Second, the shipowner will have the required connection to the EU if it has its "place of establishment or are located within the Union".(15) The AIA Article 2 (1) b). Furthermore, non-EU-based shipowners will also have sufficient connection if "the output produced" by the AI system is "used in the Union".(16) The AIA Article 2 (1) c). The output, being for instance decisions on navigation, will naturally be considered as used in the Union if it is employed in the steering of ships within EU territorial waters or ports,(17) The United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) constitutes no barrier to the AIA regulating ANS in territorial waters, cf. UNCLOS Article 21(1) a). in contrast to sailing the high seas.(18) UNCLOS Article 87. Nonetheless, one may argue that output used in navigation on the high seas should be considered as used within the Union in the case of EU-flagged vessels, by analogy with the principle of flag state jurisdiction.(19) UNCLOS Article 92.