The authors are concerned about the safety, health, and rights of the European citizens due to inadequate measures and procedures required by the current draft of the EU Artificial Intelligence (AI) Act for the conformity assessment of AI systems. We observe that not only the current draft of the EU AI Act, but also the accompanying standardization efforts in CEN/CENELEC, have resorted to the position that real functional guarantees of AI systems supposedly would be unrealistic and too complex anyways. Yet enacting a conformity assessment procedure that creates the false illusion of trust in insufficiently assessed AI systems is at best naive and at worst grossly negligent. The EU AI Act thus misses the point of ensuring quality by functional trustworthiness and correctly attributing responsibilities. The trustworthiness of an AI decision system lies first and foremost in the correct statistical testing on randomly selected samples and in the precision of the definition of the application domain, which enables drawing samples in the first place. We will subsequently call this testable quality functional trustworthiness. It includes a design, development, and deployment that enables correct statistical testing of all relevant functions. We are firmly convinced and advocate that a reliable assessment of the statistical functional properties of an AI system has to be the indispensable, mandatory nucleus of the conformity assessment. In this paper, we describe the three necessary elements to establish a reliable functional trustworthiness, i.e., (1) the definition of the technical distribution of the application, (2) the risk-based minimum performance requirements, and (3) the statistically valid testing based on independent random samples.

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