EPRS BRI(2023)739342 EN · Table (p.8)
From EPRS_BRI(2023)739342_EN.pdf · page 8
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| EPRS | European Parliamentary Research Service | |
| Relation to national laws | |
| The draft AI liability directive leaves some margin of appreciation and interpretation to Member | |
| States' legal orders. The directive would lay down EU rules for presumption of causality but not | |
| harmonise rules regarding which party has the burden of proof or which degree of certainty is | |
| required as regards the standard of proof. This remains a Member State competence within national | |
| laws. 25 Furthermore, the proposed directive follows a minimum harmonisation approach. This | |
| would allow claimants to invoke more favourable rules under national law (e.g. reversals of the | |
| burden of proof under national fault-based regimes or national no-fault liability), for instance in | |
| cases of damage caused by AI systems.26 | |
| Review clause | |
| The Commission will have to submit a report to the Parliament, the Council, and the Economic and | |
| Social Committee, assessing the achievement of the AI | liability directive five years after its |
| transposition (Article 5). The AI liability directive therefore proposes to leave the door open for | |
| future legislative development. In particular, that review should examine whether there is a need | |
| to create no-fault liability rules for claims against the operator combined with a mandatory | |
| insurance for the operation of certain AI systems, as suggested by the European Parliament | |
| resolution of 20 October 2020 on a civil liability regime for artificial intelligence (2020/2014(INL)). | |
| Such a review should consider, in particular, risks involving damage to important legal values, such | |
| as the life, health and property of unwitting third parties, through the operation of AI-enabled | |
| products or services as well as the insurance market's development of appropriate solutions. | |
| Advisory committees | |
| The European Economic and Social Committee (EESC) adopted an opinion on the proposal on | |
| 25 January 2023. The European Committee of the Regions (CoR) has not adopted an opinion. | |
| National parliaments | |
| The subsidiarity deadline for national parliament was set at 28 November 2022. In its submission, | |
| the German Bundesrat warns that the term 'AI system' in the AI liability directive is based on a | |
| definition proposed in the draft AI act that would lead to an excessively broad scope of application. | |
| Furthermore, the Bundesrat stresses that, under the current draft text, in the case of a claim for | |
| damages concerning an AI system that is not a high-risk AI system, the presumption of causality | |
| would only apply where the national court considers it 'excessively difficult' for the claimant to prove | |
| the causal link (Article 4(5)). This requirement rests therefore on an imprecisely defined legal | |
| concept. | |
| Stakeholder views27 | |
| Some of the main contentious points raised so far are listed below. | |
| Presumption of causality, burden of proof and coherence with the | |
| proposed AI act | |
| Consumer associations and civil society groups welcome the proposed new EU liability rules but | |
| warn they contain blind spots. The main EU consumer protection association, BEUC, criticises the | |
| proposal for placing the responsibility on consumers to prove the fault lies with the operator. | |
| Considering how opaque and complex AI systems are, BEUC argues these conditions will de facto | |
| make it impossible for consumers to use their right to compensation for damages. The Future of Life | |
| Institute (FLI), an independent non-profit organisation, recommends a strict liability regime for high- | |
| risk AI systems as well as for general purpose AI systems and proposes that all other AI systems fall | |
| under a fault-based liability regime where the presumption of | fault lies on the operator. |
| Furthermore, FLI calls upon EU lawmakers to harmonise the immaterial damages and indirect harms |
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