Brussels,

THE NEW FRONTIERS

AI Liability Directive​

Highlighting liability as a significant barrier for European companies using AI, in 2021 the Commission proposed a Directive to address the inadequacies of current national liability rules, which often require victims to prove fault. Given AI’s complexity, autonomy, and opacity, proving such fault can be costly and lengthy, potentially deterring victims from pursuing compensation.

The memorandum reflects concerns that ad hoc judicial adaptations to AI cases create legal uncertainty and make it difficult for businesses, especially SMEs, to predict liability exposure and insure against it. This uncertainty is exacerbated for companies operating across different EU jurisdictions.

The proposal aims to harmonize liability rules at the EU level, reducing business costs and legal uncertainties, and preventing the fragmentation that would arise from individual Member States creating their own AI-specific liability regulations.

​By doing so, it intends to facilitate the broader adoption of trustworthy AI within the internal market, ensuring victims of AI-related damage receive comparable protection to those affected by conventional products, thus fostering a more consistent and supportive environment for AI development and use across the EU.

​
eEuropa Blog - Read our articles

Click to read

Summary

​The Directive aims to standardize non-contractual civil liability for damages involving AI systems within the EU, enhancing the internal market's function. It responds to the European Parliament’s Resolution 2020/2014(INL), adapting private law for the digital economy transition.

This Directive provides mechanisms to facilitate compensation claims for damages caused by high-risk AI systems, improving the identification of liable parties and the gathering of pertinent evidence. Article 3 outlines judicial procedures where courts can order the disclosure or preservation of evidence concerning AI systems suspected of causing damage. This ensures that evidence gathering is targeted and proportionate, protecting against unnecessary legal burdens and safeguarding confidential information.

The Directive introduces a rebuttable presumption of non-compliance with a duty of care, shifting some burden of proof to the defendant, who can still contest this presumption. Additionally, it establishes a presumption of causality in cases of fault, simplifying the claimant's task of linking the AI’s action (or inaction) to the incurred damage. This is particularly pertinent when AI's complex and opaque nature makes traditional proof challenging.

Furthermore, distinctions are made between claims against AI providers and users, reflecting their respective responsibilities under the AI Act. In cases involving high-risk AI systems, defendants can counter the presumption of causality if they demonstrate that the claimant has sufficient access to evidence. Conversely, for non-high-risk systems, the presumption applies only if proving causality is excessively difficult for the claimant.

Overall, the Directive aims to balance the interests of all parties involved, providing a framework that encourages compliance and transparency while facilitating fair compensation for damages caused by AI systems.