The impact of artificial intelligence on the current producer liability regime: a regime under review by the European authorities

Isa Pinto Pereira

Keywords

Consumer; Objective responsibility of the producer; Defective products; Causation; Theory of Adequate Causation; Artificial Intelligence.

Abstract

The main purpose of this study is to analyse Decree-Law 383/89, of November 6, on the objective liability of the producer arising from the sale of defective products, which transposes into Portuguese law Council Directive 85/374/EEC of July 25, 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. With reference to Decreto-Lei 383/89, we will address the essential points of the system, beginning with an analysis of the concepts of producer (distinction between real and apparent producer), product, defect and damage, the system of objective producer liability, the theory of conditio sine qua non and the theory of adequate causation (seeking to highlight the insufficiencies of these traditional theories for the purposes of producer liability) and the causes of exclusion of producer liability provided for in the system. Next, the two new Directive Proposals relevant to this study will be analysed. On September 28, 2022, the European Commission released two legislative proposals of the liability package. The Proposal for a Directive on liability for defective products (Revision of the Product Liability Directive) and the Proposal for a Directive on the adaptation of the rules on non-contractual liability to artificial intelligence (AI Liability Directive). These Directive Proposals aim to modernize and strengthen, at European level, consumer protection, particularly with regard to liability for damage caused by new, renovated and Artificial Intelligence products. We conclude that these Directive Proposals will strengthen and modernize the rules of objective responsibility of producers as will be shown. We believe, therefore, that the Directive Proposals of maximum degree of harmonization, to be approved, will confer greater legal protection of consumers in times of increasing technological development.