The European Commission's approach to extra-contractual liability and AI – An evaluation of the AI liability directive and the revised product liability directive

Abstract

The European Commission published two proposals that aim to adapt (tort) liability rules to the digital age, the circular economy and the impact of the global value chain. The ‘AI Liability Directive’ contains rules on the disclosure of information and the alleviation of the burden of proof in relation to damage caused by AI systems. The ‘revised Product Liability Directive’ substantially modifies the current product liability regime by broadening the scope, integrating new circumstances to assess the product's defectiveness and introducing provisions regarding presumptions of defectiveness and causation. In this article, we evaluate how both proposals provide some answers to major technological developments – in particular AI – in view of the issues they raise as identified in the legal literature. To do so, we also provide a clear understanding of the major provisions in both proposals, supported by visuals. Although we welcome both proposals for several reasons outlined in the article, different unclarities and inconsistencies need to be resolved. These inter alia relate to the unclarity of terms, the position of claimants, the uncertain interaction with other supranational initiatives and the many interpretation issues with regard to the fault-based liability regime. A more fundamental objection relates to the choice of the revised Product Liability Directive to capture all liability issues with AI systems, which comes at the cost of losing the connection to ‘product’ as a grounding concept. Our findings can be used by policymakers in further adapting and refining both proposals to the digital reality.