Curzio Fossati

AI SYSTEMS AND PRODUCT LIABILITY IN THE EU

Introduction

Ai systems and product liability in the eu. Explores AI product liability in the EU under private international law. Analyzes EU Directives (AI Act) on defective AI systems, jurisdiction, and applicable law, proposing legal solutions.

Abstract

The paper analyses liability for defective AI systems from a private international law perspective. It begins with a brief analysis of the main reasons for the adoption of the new Directive 2024/2853 of 23 October 2024 on liability for defective products and the role of this Directive in the new EU legal framework on artificial intelligence, examining in particular its interplay with Regulation 2024/1689 of 13 June 2024 laying down harmonised rules on artificial intelligence (AI Act). The paper then focuses on the lack of a specific regulation of private international law issues in the above-mentioned legal framework and the consequent need to consider other sources of law to address these issues. To this end, it first examines the relevant provisions of Regulation 1215/2012 (Brussels I bis), in particular the special forum for torts (Article 7 (No. 2)), and its interpretation by the CJEU in cases of defective products. It also deals with the conflict-oflaws rules of Regulation 864/2007 (Rome II) - especially Article 5, on damages caused by a product - and their coordination with the 1973 Hague Convention on the Law Applicable to Products Liability. The aim of the paper is to examine the results of the application of the current rules on jurisdiction and applicable law to cases of defective AI systems, and to highlight their main critical issues and possible solutions. The author proposes the introduction of new heads of jurisdiction and conflict-of-law rules that would strike a fairer balance between the interests at stake: protecting people from the serious harm that AI systems could cause, and promoting the free movement of these systems in the EU market.

Review

The paper "AI SYSTEMS AND PRODUCT LIABILITY IN THE EU" undertakes a timely and crucial examination of liability for defective AI systems, specifically through the lens of private international law. It begins by contextualizing the discussion within the recently adopted EU legal framework, notably Directive 2024/2853 on liability for defective products and Regulation 2024/1689 (the AI Act), analyzing their interplay. The core of the paper then addresses the significant gap in this new framework concerning specific private international law provisions. To tackle this, the author meticulously scrutinizes existing EU instruments, including Regulation 1215/2012 (Brussels I bis) and Regulation 864/2007 (Rome II), as well as their coordination with the 1973 Hague Convention, to ascertain their applicability and limitations in the context of AI-related product liability disputes. A key strength of this paper lies in its sharp focus on a pressing legal challenge: how to effectively assign jurisdiction and determine applicable law when AI systems cause harm across borders, particularly in the absence of explicit rules within the new EU AI legislation. The author's detailed analysis of the nuances of Brussels I bis and Rome II, coupled with insights from CJEU jurisprudence, provides a robust foundation for understanding the current legal landscape. By critically highlighting the "critical issues" arising from the application of these existing rules to novel AI scenarios, the paper makes a significant contribution to legal scholarship. Furthermore, the author's proactive proposal for new heads of jurisdiction and conflict-of-law rules represents a valuable and forward-thinking step towards achieving a more equitable balance between consumer protection and the imperative of promoting the free movement of AI systems within the EU market. This paper is highly relevant for policymakers, legal practitioners, and scholars navigating the complex intersection of AI, product liability, and private international law. Its findings offer critical insights into the adequacy—or inadequacy—of current legal instruments when confronted with the unique challenges posed by AI's autonomy, opacity, and interconnectedness. The proposed solutions are particularly noteworthy, as they aim to foster legal certainty and fairness, thereby supporting both the responsible deployment of AI technologies and the protection of individuals from potential harm. Ultimately, the work serves as an essential guide for shaping future legislative efforts to ensure that the EU's legal framework remains robust and adaptable in the face of rapid technological advancements, ensuring that justice can be effectively pursued in a world increasingly reliant on artificial intelligence.

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