Liability and artificial intelligence in the EU: Assessing the adequacy of the current Product Liability Directive
| Author | Tiago Sérgio Cabral |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
| DOI | 10.1177/1023263X20948689 |
| Subject Matter | Articles |
Article
Liability and artificial
intelligence in the EU:
Assessing the adequacy
of the current Product
Liability Directive
Tiago S´
ergio Cabral*
Abstract
The European Union selected achieving a leadership position in the AI sector as one of the
priorities for the future of the bloc as a whole. Economic reasons are behind this decision, but they
are not the exclusive motive behind this objective. Undeniably, AI will have an enormous impact on
world’s economy and if the EU falls behind, the standards of living that citizens of the Union
currently enjoy may be at risk. Furthermore, there is also the question of keeping European values,
principles and ethical standards alive in this technological transition. To achieve the leadership
position it desires, it is essential for the EU to possess an updated, producer-friendly legal
framework, that manages, at the same time, to ensure consumer protection and safe development
of AI. One of the legal instruments that may need to be amended is the Product Liability Directive.
In this paper we will study the Product Liability Directive and its shortcomings on AI regulation,
along with the possible solutions to adapt the EU product liability legislation to this new tech-
nological challenge. We will assess what solutions are best suited to apply in the EU and fulfil the
objective of achieving leadership in the sector.
Keywords
Product liability, artificial intelligence, emerging technologies, EU AI strategy, European policy
* Researcher at the Centre for Justice and Governance – EU Law, University of Minho, Portugal | Member of the AI Team at
Vieira de Almeida & Associados
Corresponding author:
Tiago S´
ergio Cabral, Researcher at the Centre for Justice and Governance – EU Law, University of Minho, Portugal |
Member of the AI Team at Vieira de Almeida & Associados.
E-mail: tsc@vda.pt
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(5) 615–635
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20948689
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1. Introduction
In this paper, we intend to assess the shortcomings of the Council Directive 85/374/EEC of 25 July
1985 on the approximation of the laws, regulations and administrative provisions of the Member
States concerning liability for defective products (hereinafter, ‘Product Liability Directive’)
1
in
what regards the growing challenge of regulating Artificial Intelligence (hereinafter, ‘AI’). We will
consider whether the Product Liability Directive by means of an interpretative effort of its provi-
sions can still be an adequate tool to deal with this phenomenon or if a legislative intervention is
needed. By conducting a thorough analysis of the legal rules, case-law, legal scholar’s opinions,
and grey literature we will assess what solutions are, in our opinion, best suited to apply in the EU
and fulfil the objective of the block: achieving leadership in the sector. Our Sections 3 and 4 will
focus more on current challenges and short-term developments, while Section 5 will offer long-
term solutions.
Unlike other fields such as data protection (and arguably even consumer protection stricto
sensu)
2
the legal regime regulating producer’s liability for defective products does not arise from
a recent legislative effort. In fact, the Product Liability Directive is a legacy from a time when
integration in the EU was not as deep as it is today, Council supremacy still reigned supreme and
the Digital Single Market was still a remote idea, or not even that. The Product Liability Directive
is a maximum harmonization directive in the sense that within its scope of application Member
States can only deviate from its rules in a manner ‘entirely determined by the Directive itself and
[that] must be inferred from its wording, purpose and structure’. However, as we will see below, its
scope is sometimes narrow enough that key aspects fall outside. In addition, there is ample room
for derogations through national law. Even in provisions that seem core to the legal instruments we
argue that, sometimes, space for derogations is excessive. Due to these facts, full harmonization
loses effectiveness.
2. Basic rules and concepts of the Product Liability Directive
In accordance with the Product Liability Directive the general rule in EU law is strict liability of
the Producer for damages caused by the defects in the product.
3
National rules providing for
contractual or non-contractual liability arising from damages of the same nature remain unaffected
by the Directive, meaning that, as a general rule, it is possible for the injured party to choose
between the remedies offered by the different regimes or even request compensati on under a
combination of them, as he/she deems fit, within the limits of the law.
4
1. As amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council
Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States
concerning liability for defective products.
2. If we take into account Directive 2019/770/EU of the European Parliament and of the Council of 20 May 2019 on certain
aspects concerning contracts for the supply of digital content and digital services and Directive 2019/771/EU of the
European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods,
amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC [2019].
3. The injured party must prove the damage, the defect and the causal relationship between defect and damage.
4. Even though this is the general rule there may, of course, be as, for example, the national regime may restrict its
application when its scope is the same as the Product Liability Directive (and transposition law). The following cases
could be of some interest on this point: Case C-154/00 Commission v. Greece, EU:C:2002:252, para. 19; Case C-183/00
Medicina Asturiana, EU:C:2002:254; Case C-52/00 Commission v. France, EU:C:2002:252 para. 23
616 Maastricht Journal of European and Comparative Law 27(5)
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