Proposal for a Directive on adapting non contractual civil liability rules to artificial intelligence

September, 2022

European Union

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive)

Reasons for and objectives of the proposal This explanatory memorandum accompanies the proposal for a Directive on adapting noncontractual civil liability rules to artificial intelligence (AI). In a representative survey of 20201 , liability ranked amongst the top three barriers to the use of AI by European companies. It was cited as the most relevant external obstacle (43%) for companies that are planning to, but have not yet adopted AI. In her Political Guidelines, Commission President Ursula von der Leyen laid out a coordinated European approach on AI.

In its White Paper on AI of 19 February 2020, the Commission undertook to promote the uptake of AI and to address the risks associated with some of its uses by fostering excellence and trust. In the Report on AI Liability accompanying the White Paper, the Commission identified the specific challenges posed by AI to existing liability rules. In its conclusions on shaping Europe’s digital future of 9 June 2020, the Council welcomed the consultation on the policy proposals in the White Paper on AI and called on the Commission to put forward concrete proposals.

On 20 October 2020, the European Parliament adopted a legislative own-initiative resolution under Article 225 TFEU requesting the Commission to adopt a proposal for a civil liability regime for AI based on Article 114 of the Treaty on the Functioning of the EU (TFEU).

Current national liability rules, in particular based on fault, are not suited to handling liability claims for damage caused by AI-enabled products and services. Under such rules, victims need to prove a wrongful action or omission by a person who caused the damage. The specific characteristics of AI, including complexity, autonomy and opacity (the so-called “black box” effect), may make it difficult or prohibitively expensive for victims to identify the liable person and prove the requirements for a successful liability claim. In particular, when claiming compensation, victims could incur very high up-front costs and face significantly longer legal proceedings, compared to cases not involving AI. Victims may therefore be deterred from claiming compensation altogether. These concerns have also been retained by the European Parliament (EP) in its resolution of 3 May 2022 on artificial intelligence in a digital age.