EU AI Act vs GDPR: How They Differ and Overlap
The EU AI Act and GDPR are both EU regulations that affect how organizations handle technology and data, but they address different concerns. Understanding how these frameworks interact helps organizations build compliance programs that satisfy both.
Key Takeaways
| Point | Summary |
|---|---|
| Focus | GDPR protects personal data; AI Act governs AI systems regardless of data type |
| Overlap | AI systems processing personal data must comply with both regulations |
| Complementary roles | GDPR focuses on data protection principles; AI Act adds AI-specific safety and transparency requirements |
| Separate enforcement | Different supervisory authorities, though coordination mechanisms exist |
| Practical approach | Organizations should integrate both frameworks rather than treating them separately |
Quick Answer: GDPR and the EU AI Act address different aspects of technology governance. GDPR protects personal data processing, while the AI Act regulates AI systems based on risk. When AI processes personal data, both apply. GDPR-compliant organizations have a foundation for AI Act compliance but need to add AI-specific requirements.
Core Differences
| Aspect | GDPR | EU AI Act |
|---|---|---|
| Primary focus | Personal data protection | AI system safety and trustworthiness |
| Scope | Any processing of personal data | AI systems placed on market or used in EU |
| Risk approach | Data sensitivity and impact on individuals | AI system use case and potential harm |
| Subject of regulation | Data processing activities | AI systems and their lifecycle |
| Key roles | Controller, processor | Provider, deployer, importer, distributor |
| Effective since | May 2018 | Phased 2024-2027 |
| Maximum penalty | 4% global turnover or 20M EUR | 7% global turnover or 35M EUR (prohibited AI) |
How They Overlap
When an AI system processes personal data, both regulations apply simultaneously:
Joint Requirements
| Area | GDPR Requirement | AI Act Requirement |
|---|---|---|
| Transparency | Inform individuals about data processing | Disclose AI system use and capabilities |
| Documentation | Record of processing activities | Technical documentation for AI systems |
| Risk assessment | Data Protection Impact Assessment (DPIA) | AI risk management system |
| Human involvement | Rights regarding automated decisions | Human oversight requirements |
| Security | Appropriate technical measures | Accuracy, robustness, cybersecurity |
Automated Decision-Making
GDPR Article 22 and the AI Act both address automated decisions affecting individuals:
| GDPR Article 22 | AI Act |
|---|---|
| Right not to be subject to solely automated decisions with legal or significant effects | Requirements for human oversight in high-risk AI systems |
| Requires meaningful human involvement | Specifies technical and organizational oversight measures |
| Applies when decisions have legal or similarly significant effects | High-risk classification based on use case, not just effect |
| Right to obtain human intervention | Deployer must assign competent personnel for oversight |
Practical implication: An AI system making employment or credit decisions must comply with both GDPR Article 22 (data protection) and AI Act high-risk requirements (AI safety).
What GDPR Compliance Gives You
Organizations with mature GDPR programs have advantages when approaching AI Act compliance:
| GDPR Practice | AI Act Benefit |
|---|---|
| Data inventory | Foundation for AI system inventory |
| Data quality processes | Supports AI Act data governance requirements |
| DPIA experience | Skills transfer to AI risk assessments |
| Vendor management | Process for assessing AI providers |
| Incident response | Framework adaptable for AI incidents |
| Documentation habits | Culture supports AI documentation needs |
| DPO role | May coordinate with AI compliance functions |
Gaps GDPR Does Not Address
| AI Act Requirement | Why GDPR Does Not Cover It |
|---|---|
| Conformity assessment | GDPR has no pre-market assessment requirement |
| Technical safety testing | GDPR focuses on data, not system performance |
| AI-specific transparency | GDPR transparency is about data use, not AI capabilities |
| Accuracy and robustness | GDPR addresses data quality, not model performance |
| Post-market monitoring | GDPR has no equivalent ongoing monitoring requirement |
| CE marking | No product conformity marking in GDPR |
Data Protection Impact Assessments and AI
Both regulations require impact assessments in certain situations:
| Aspect | GDPR DPIA | AI Act Fundamental Rights Impact Assessment |
|---|---|---|
| When required | High-risk data processing | High-risk AI deployed by: (1) public bodies, (2) private entities providing public services, or (3) deployers of credit scoring and life/health insurance AI systems. Critical infrastructure AI is excluded from FRIA requirements. |
| Focus | Privacy risks and data protection | Broader fundamental rights impact |
| Trigger | Likelihood of high risk to rights and freedoms | Deploying high-risk AI in specified categories |
| Output | Risk assessment and mitigation measures | Assessment of AI impact on affected groups |
For AI systems processing personal data: Organizations may need both assessments. The AI Act explicitly states that AI fundamental rights assessments can build on GDPR DPIAs to avoid duplication.
Incident Reporting Comparison
| Aspect | GDPR | EU AI Act |
|---|---|---|
| What triggers reporting | Personal data breach | Serious incident involving high-risk AI |
| Timeline | 72 hours to supervisory authority | Without undue delay: max 15 days (standard), 10 days (death), 2 days (widespread/critical infrastructure) |
| Who reports | Controller | Provider and deployer |
| To whom | Data protection authority | Market surveillance authority |
| Content | Nature of breach, affected data, consequences, measures | Nature of incident, AI system involved, corrective actions |
When both apply: A data breach caused by an AI system malfunction may require dual reporting under both regulations to respective authorities.
Enforcement and Supervision
The regulations have separate but coordinated enforcement structures:
| Aspect | GDPR | EU AI Act |
|---|---|---|
| Primary authority | Data protection authorities | Market surveillance authorities |
| EU-level body | European Data Protection Board | AI Office (European Commission) |
| National implementation | Direct effect | Direct effect (with some national variation) |
| Coordination | One-stop-shop for cross-border processing | Lead market surveillance authority for cross-border cases |
Coordination requirements: The AI Act requires market surveillance authorities to consult data protection authorities when enforcement concerns both AI and personal data issues.
Practical Integration Strategies
Unified Governance
| Approach | Implementation |
|---|---|
| Integrated oversight | Single committee overseeing both data protection and AI governance |
| Shared documentation | Templates that address both regulatory requirements |
| Combined assessments | DPIA and AI risk assessment performed together where applicable |
| Aligned policies | Policies that address both data protection and AI requirements |
Documentation Alignment
| Document | GDPR Element | AI Act Element |
|---|---|---|
| System inventory | Record of processing activities | AI system registry |
| Risk assessment | DPIA | Risk management system documentation |
| Third-party assessment | Processor due diligence | Provider/deployer evaluation |
| Training records | Data protection training | AI-specific competency training |
| Incident log | Data breach register | AI incident records |
Process Integration
| Process | Integrated Approach |
|---|---|
| New system evaluation | Single intake assessing both data protection and AI classification |
| Vendor assessment | Combined questionnaire covering both frameworks |
| Change management | Review process considering both regulatory impacts |
| Incident response | Unified triage determining which (or both) regulations apply |
| Regular review | Combined compliance review addressing both frameworks |
Common Questions
Does GDPR compliance mean AI Act compliance?
No. GDPR compliance provides a foundation but does not satisfy AI Act requirements. Organizations need to add AI-specific elements: system classification, technical documentation, conformity assessment, and AI-specific transparency measures.
If my AI does not process personal data, do I still need to comply with the AI Act?
Yes. The AI Act applies based on the AI system's risk classification, not whether it processes personal data. A high-risk AI system that only processes non-personal data must still meet all high-risk requirements.
Can I use my DPO for AI Act compliance?
Potentially, but consider the different expertise required. Data protection focuses on privacy law and data handling practices. AI compliance requires understanding of AI systems, risk assessment methodologies, and technical safety requirements. Some organizations create a separate AI compliance function; others expand the DPO role with additional expertise.
How do the penalties interact?
Organizations can potentially face penalties under both regulations for the same incident if it involves both a data protection violation and an AI Act violation. The AI Act explicitly states that penalties should be effective, proportionate, and dissuasive, taking into account other penalties for the same behavior.
How Bastion Helps
Bastion helps organizations navigate both GDPR and EU AI Act compliance:
- Integrated assessment. We evaluate your AI systems against both frameworks to identify overlapping requirements and gaps.
- Unified documentation. We help create documentation that satisfies both regulatory requirements efficiently.
- Combined governance. We design governance structures that address data protection and AI compliance together.
- Practical implementation. We help implement policies and processes that work for both frameworks.
- Ongoing monitoring. We track developments in both regulatory areas and help you stay current.
Our experience with GDPR compliance (learn more about GDPR) informs our approach to the AI Act, helping organizations leverage existing compliance investments.
Ready to align your GDPR and AI Act compliance? Talk to our team
Sources
- EU AI Act Full Text (EUR-Lex) - Regulation text including GDPR references
- GDPR Full Text (EUR-Lex) - General Data Protection Regulation
- EDPB-AI Office Cooperation - Information on data protection and AI regulatory coordination