POSITION | LIABILITY RULES | ARTIFICIAL INTELLIGENCE
AI Liability Directive BDI position on the European Commission's proposal for a Directive
4 December 2024
The deliberations on the European Commission's proposal for a Directive on adapting non-contractual civil liability rules to artificial intelligence ("AI Liability Directive") from September 2022 were suspended in the last legislative period in the Council and European Parliament due to the parallel negotiations on the AI Act. The European institutions have now restarted the discussion on the draft directive. The European Commission has published a new draft adapted to the AI Act, which is currently considered in the Council and European Parliament. The Federation of German Industries (BDI) has the following position on the draft directive:
No need for an AI Liability Directive The AI Act, which came into force on 1 August 2024 and must be applied from August 2026 or August 2027, depending on the risk classification, provides for extensive requirements on data disclosure, risk management and compliance with due diligence obligations, which will significantly influence and change the AI landscape in Europe. The recently adopted new Product Liability Directive (EU) 2024/2853, which must be transposed into national law by the end of 2026, has also massively expanded the liability framework for software applications and artificial intelligence and led to stricter rules. Additionally, there is the parallel applicable national tort law, which, in addition to product liability, also provides for the possibility of claims for damages caused by AI systems. Overall, it will be much easier in future for plaintiffs who wish to claim damages caused by AI to obtain information about the underlying AI system and enforce their claim in court. From the BDI's point of view, there is currently no legal loophole and no need for further regulation in the form of a separate AI liability directive. Instead, the newly adopted major legislative packages should first be implemented sensibly and tested in practice. Only if after an appropriate period of application and a new evaluation a need for additional regulation is proven, targeted new measures can be envisaged. This would also be in line with the European institutions' much-announced target of better legislation and the avoidance of unnecessary new regulation.