AI SYSTEMS AND PRODUCT LIABILITY IN THE EU

A PRIVATE INTERNATIONAL LAW ANALYSIS

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.