Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 38

In the years ahead, the legislative institutions of the Union will again have to contemplate the introduction of further compulsory liability insurances. As digitalisation is increasingly permeating the production, distribution and consumption of goods and services, the existing system of loss allocation through rules on liability and all kinds of insurances is getting under pressure. Technological innovations connected with the emergence of artificial intelligence, the internet of things and robotics raise the question to what extent existing liability rules based on fault, i.e. the human ability to control and manage risks in a responsible way can be maintained and to what extent they require a reversal of the burden of proof or the introduction and channeling of strict liability. Since the commercial use of the new technologies does not necessarily depend on financial power, additional problems may arise where small and medium enterprises cause losses.

The legislative institutions of the Union have tackled this vast problem area in recent years. Discussions mainly focus on liability issues: the burden of proof, the need for strict liability and the channeling of liability to the various parties producing components of autonomous systems56. The introduction of strict liability in combination with compulsory liability insurance seems to offer a simple solution and an easy escape from the complexity of the questions. An obligatory insurance scheme has thus been contemplated by the European Parliament57, by an expert group on liability and new technologies convened by the European Commission58 and by a recent Communication of the Commission itself59. The documents published so far seem to consider the compulsory liability insurance as a kind of cure-all and that, at best, the discussion on the preconditions of such insurance duties and of the liability including its capping is needed to secure the effectiveness of such insurance.

This is a naïve assumption. The message of this paper is that a “naked” compulsory liability insurance cannot solve the problems. A number of details concerning cover and exclusion clauses must be regulated as well. The European institutions should take a close look at the scope of, and possible exceptions from, a compulsory liability insurance if they decide to introduce one. The intended protection of third-party victims should dictate the content of such liability insurance. If the Union fails to dress up this “naked” duty to insure by further attributes, results like those of the breast implants case will occur more frequently in the future.