Tort Rules and Regulatory Sandboxes: The Influence of the National Jurisdictions

In the legal framework governing regulatory sandboxes, the AI Act devotes only a single paragraph to non-contractual liability, stating that European and national rules apply to providers. However, this choice opens potential scenarios for diverging applications by national courts on the liability of the conducts within the sandbox, which should be considered in light of the different legal models of the single Member States, and which could jeopardize the harmonization process. Furthermore, considering the applicable regulations, consideration should also be given to the proposal to amend the Product Liability Directive, which includes AI systems within its scope. This proposal leans toward a strict liability model or a framework where, through the reversal of the burden of proof, fault plays a limited role, as seen in the proposed AI Liability Directive. The present paper suggests that, in the case of regulatory sandboxes, fault-based liability should apply during the experimental phase in order to not to discourage a developing market and to allow newcos without significant financial investments to access the experimental phase.