Grounding the case for a European approach to the regulation of automated driving: the technology-selection effect of li
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Grounding the case for a European approach to the regulation of automated driving: the technology‑selection effect of liability rules Andrea Bertolini1 · Massimo Riccaboni2 Accepted: 16 October 2020 © The Author(s) 2020
Abstract In the current paper, we discuss the need for regulation at EU level of Connected and Automated Driving solutions (henceforth CAD) based on multiple considerations, namely (i) the need for uniformity of criteria across European Member States, and (ii) the impact that regulation—or the absence of it—has on the proliferation of specific technological solutions. The analysis is grounded on legal and economic considerations of possible interactions between vehicles with different levels of automation, and shows how the existing framework delays innovation. A Risk-Management Approach, identifying one sole responsible party ex ante (one-stop-shop), liable under all circumstances—pursuant to a strict, if not absolute liability rule—is to be preferred. We analyse the solution adopted by some Member States in light of those considerations and conclude that none truly corresponds to a RMA approach, and differences will also cause market fragmentation. We conclude that because legal rules determine what kind of technological application is favoured over others—and thence they are not technology-neutral—uniformity across MSs is of essential relevance, and discuss possible policy approaches to be adopted at European level. Keywords Driverless cars · Artificial intelligence · Liability · Product liability · European law · Law and technology · Insurance · Risk management JEL classifications K13 · K29 (law and technology, AI regulation) · L51 · L91
Andrea Bertolini and Massimo Riccaboni are jointly responsible for Sects. 1–15 and Sects. 19–20, Andrea Bertolinifor Sects. 16–18. * Andrea Bertolini [email protected] 1
Scuola Superiore Sant’Anna, Dirpolis Institute, Piazza Martiri della Libertà 33, 56127 Pisa, PI, Italy
2
IMT Lucca, Institute for Advanced Studies, Piazza S.Francesco, 19, 55100 Lucca, LU, Italy
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Vol.:(0123456789)
European Journal of Law and Economics
1 Introduction The paper discusses how liability rules influence the kind of technology that ultimately emerges and prevails and, based on the critical analysis of the existing legal framework at European level, concludes that, in the field of autonomous driving, reform is needed, and that it should be grounded on a Risk-Management Approach, overcoming the need of an exact apportionment of liability through complex litigation. Such an approach would favour market penetration of increasingly autonomous vehicles—to be deemed beneficial in an economic and social (in terms of accident reduction) perspective—so long as it was implemented at European level, to avoid divergence among Member States (henceforth MSs), that would instead cause market fragmentation. To do so, it starts by acknowledging how at least two types of automation are possible: Type-1, where the user is free to choose to activate the self-driving fun
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