Non-Contractual Liability Applicable to Artificial Intelligence: Towards a Corrective Reading of the European Intervention

Abstract

On 28 September 2022, the European Commission published proposals for revision of the legal rules on product liability and regulation of non-contractual liability for damage caused by the use of artificial intelligence. The two texts have convergent purposes, but are structured around different types of liability. The aim of this article is to demonstrate that the application of the principle of subsidiarity to European regulation of compensation for damage attributable to artificial intelligence requires more than adjustments to fault-based liability, with the necessary creation of compensation funds for injuries caused by high-risk artificial intelligence systems. The conclusion is supported by an analysis of the relationship between the innovation principle and the precautionary principle in the regulation of artificial intelligence and by the specific features of this emerging digital technology.

Keywords: civil liability, artificial intelligence, regulation of artificial intelligence, high-risk artificial intelligence systems, European law, subsidiarity principle, innovation principle, precautionary principle, compensation, compensation funds, damages, fault-based liability, product liability