Italian Civil Liability Applicable to Self-Driving Cars

Asaro (2016), p. 191.

Irti (1990), p. 150, underlines that the flexibility of legal principles, which involves the construction of new civil law institutions, accompanies the interaction between civil law and technological society. Perlingieri (2015), pp. 1235–1246 and Stradella and Palmerini (2013), analyse the impact of technologies on legal relationships.

Convention on Road Traffic, Vienna 8 November 1968. In 2014 the UN Working Party on Road Traffic Safety (WP1) proposed amendments, among others, to Article 8 and Article 39 of the Vienna Convention, with the objective of enhance and ensure that safety rules do not hamper the advancement of new technologies aimed at improving road safety. According to the amendment, ‘systems which influence the way vehicles are driven’, are deemed to be in accordance with Article 8 of the Vienna Convention. The amendment was adopted by the UN on 23 September 2015 and entered into force on 23 March 2016. It was submitted also by the Italian government, showing the extent to which, the new technology is important also for Italy. The amendment seems to be a step forward in the admission of semi-autonomous vehicles, but is still far from that of fully autonomous vehicles, see United Nation Economic and Social Council, Economic Commission for Europe, Inland Transport Committee: Working Party on Road Traffic Safety (WP1), Report of the sixty-eighth session of the Working Party on Road Traffic Safety, 17 April 2014, available at https://​www.​unece.​org/​fileadmin/​DAM/​trans/​doc/​2014/​wp1/​ECE-TRANS-WP1-145e.​pdf;Working Party on Road Traffic Safety (WP1), Report of the Seventy–second session of the Working Party on Road Traffic Safety, 19 April 2016, available at https://​www.​unece.​org/​fileadmin/​DAM/​trans/​doc/​2016/​wp1/​ECE-TRANS-WP.​1-153e.​pdf.

As for the general principles, we are dealing with legal provisions of general content which express values to which other legal provisions, called rules are conformed. While the rules directly influence the behaviour or attribute regulatory powers, the general principles indirectly influence the behaviour, i.e. influencing the exercise of regulatory powers. Among the most important general principles in the field of civil liability, we must underline that of accountability, about the assumption of the consequences of one’s own actions towards third parties and also towards oneself. In this field, another fundamental principle is the principle of ‘neminem leadere’, which contains in itself the provisions of Article 2043 of the Italian Civil Code regarding the obligation to compensate damages, but also arises just as a general principle consisting in the prohibition of unlawful acts. See Alpa (2018), pp. 37 ff.

Italian Constitution, in force since 1 January 1948. The article 2 of the Italian Constitution, on the fundamental rights, which is usually applied in connection with article 3 of the Constitution which regulates the principle of equality to decide on the compensation for the biological damage suffered (a type of non-material damage). Article 32 of the Constitution, on the other hand, protects physical integrity, that is, health intended as an asset and, consequently, any injury to it must be compensated. An authoritative doctrine, dealing with the overall picture that has been outlined in the matter of non-pecuniary damage, after the change of address of the Italian Supreme Court with the judgment no. 1361/2014 (which has established that, if the damage affects a person’s constitutional right, it is a cause of compensation), believes that non-pecuniary damage returns to being, as in the past, the instrument to compensate for the infringement of non-pecuniary rights. See Franzoni (2010); Italian Supreme Court, civil section III, judgment 23 January 2014, no. 1361, that recognized for the first time, explicitly, the right to compensation for the damage to life or the damage from death of the victim that is transmissible to the heirs.

Italian Civil Code, R.D. 16 March 1942, n 262, OJ 79.

Italian Consumer Code, D.lgs. 6 September 2005, n 206, OJ 235.

Italian Private Insurance Code, D.lgs. 7 September 2005, n 209, OJ 239.

It is useful to highlight in this regard three important differences between the Civil Code and the special legislation of the Consumer Code, elaborated by Castronovo. Firstly, art 125 of the Consumer Code provides that the right to compensation for damages is prescribed in three years from the day on which the injured person was aware of the damage or the identity of the tortfeasor, or could have had it using the normal diligence; the civil code, on the other hand, provides for a five-year prescription period in the case of non-contractual civil liability (art 2947 Civil Code) and, in the case of contractual civil liability, the ordinary 10-year limitation period (art 2946 Civil Code). Secondly, art 126 of the Consumer Code provide a 10 year right to right to take legal action after the product has been put into circulation; this is not provided in Civil Code. Finally, Consumer Code, in art 121, introduces a novelty with respect to the civil code (in particular art 2055, civil code) regarding the right of claims based on joint and several liability, because Consumer Code provides that action against the others who are jointly and severally obliged has to be exercised only in proportion to the size of the risk attributable to each one. Castronovo (2006), p. 732.

The objective ones are: unlawful act, unjust damage, causal link between the fact and the damage; instead, the subjectives are the guilt of the agent (for intentional fault or misconduct) and the imputability of the tortfeasor (that means the lack of natural incapacity under article 2046 Italian Civil Code).

When resorting to any legal requirement, it will always be up to the judge to quantify the amount of the compensation, given that the article 2059 of the Italian Civil Code legitimates the injured to claim compensation for the negative consequences, including non-patrimonial ones.

On product liability in the field of new technologies see Montinaro (2020), pp. 365 ff.; to in-depth product liability: Simonini (2017), pp. 557ff.; Recinto and Porcelli (2014), p. 449; Alpa et al. (1989), pp. 56 ff; Mazzon (2012), pp. 1063 ff.

Vicarious liability is the responsibility of any third party that had the right, ability or duty to control the activities of someone else. A typical example is the liability of the employer for the acts of his employees. As he had achieved a return from employing individuals who contribute to the running of his business activity, he is also called to bear the costs of the damage that those persons produced to third parties when operating in his interest. As a matter of fact, the fault of selecting the given collaborator (i.e. the so-called ‘culpa in eligendo’), which implies a direct liability is a thesis outdated. Another example of vicarious liability could be the liability of parents or teachers for the acts of children or students, which came from the social risk of the role they play. However, another part of the literature believes that parents’ liability or teachers’ liability is a type of direct liability, as they have to supervise (not at any time) and educate their children/students and so influence their behaviour (i.e. the so-called ‘culpa in vigilando’ or ‘culpa in educando’). It is undoubtedly to be included in the category of vicarious liability, instead, the liability of the supervisor for damage caused by the subject with lacking mental capacity, since it is not a legally responsible subject. Bianca (2021), pp. 662 ff.

For a more detailed analysis on Italian liability regulation, see Gatt et al. (2020), pp. 239 ff.

For an analysis of art. 2054 of the Italian Civil Code in relation with the principles of product liability in the field of autonomous vehicles, see Albanese (2019), pp. 996–1044; Pellegatta (2019), pp. 135–162; Losano (2019), pp. 423–441.

Buffone (2016), pp. 95 ff.

Bianca (2021), pp. 550 ff.

It should be noted that the burden of proof of the driver having acted diligently is valid only for damages caused to things or third parties unrelated to road traffic, instead, in the case of collision between two or more vehicles, the driver must also prove the fault of the other driver(s) (so-called presumption of equal co-liability, art. 2054, para. 2, Italian Civil Code). Moreover, in order to overcome the presumption of equal co-liability, it is also necessary to provide proof of the unpredictability of the conduct of the other driver. Italian Supreme Court, section III, Judgment, 14 October 2015, no 20618. For an in-depth analysis of the topic Buffone (2016), pp. 56 ss.

Italian Supreme Court, section III, Judgment, 13 January 2015, no. 281.

Bertolini (2020); Bertolini and Riccaboni (2021), pp. 243 ff.; Bertolini (2013), pp. 277 ff.

Bertolini (2013), pp. 214 ff., specifies that even fully autonomous vehicles are object and not subject of law. Precisely these are products created by the work of man in order to satisfy certain human needs and, therefore, in the event of a defect, the liability would be attributed to the producer of the same. The EU approach concerning thee personhood is well analysed by Bertolini (2020), pp. 35 ff.

Palmerini and Bertolini (2014), pp. 112 ff., they clarify that the problem of liability in road traffic is perhaps the most relevant issue in relation to driverless cars, as it could have a strong technology-chilling effect, delaying their placing on the market.

Deep pocket is a concept used in the law and economics of tort law and refers to the idea that the risk of an activity (the compensation of damage) should be borne by the individual who is in a good position to handle it. This principle is applicable to owner’s liability, as well as to insurer’s liability and is independent for the fault criterion.

The Italian Supreme Court, not distinguishing between maintenance defect and construction defect, qualifies the liability that derives from it in terms of strict liability, while admitting that the causal link between the defect of construction or the lack of maintenance, on the one hand, and the unjust damage, on the other hand, can be interrupted if an external factor occurs that involves the occurrence of the damage (Italian Supreme Court, Judgment, 9 March 2004, no. 4754). Moreover, With regard to the burden of proof, the Supreme Court has made it clear that it is task of the damaged party, the burden of proving the existence of the construction defect or maintenance defect and the related causal link with the damaging event, while the driver and the owner to get free must prove that the damage was due to a different cause from those listed in the last paragraph of the article 2054. Italian Supreme Court, section III, Judgment, 19 February 1981, no. 1019.

The Product Liability Directive (PLD) was implemented in Italy by the d.P.R., 24 May 1988, n. 224, Implementation of the EEC directive n. 85/374 relating to the approximation of the laws, regulations and administrative provisions of the Member States regarding liability for damage caused by defective products, pursuant to art. 15 of the law of 16 April 1987, n. 183, and then repealed by d.lgs. 6 September 2005, n 206, OJ 235 (Italian Consumer Code), which at articles 114 and following, incorporates the provisions of the PLD. For the analysis of PDL see Machnikowski (2016). Currently the PLD is under revision. See European Parliament and Council, Proposal for a Directive on liability for defective products, 28 September 2022, COM(2022) 495 final.

Italian Supreme Court, section III, Judgment, 9 March 2004, no. 4754; Italian Supreme Court, section III, 6 August 2004, Judgment, no. 15179; Carnevali (1974), p. 42, specifies that, although the prediction of the liability of the driver, the owner, and of the other subject mentioned in the third paragraph of the article 2054 has the purpose of facilitating the injured in obtaining compensation, it is not possible to exclude any liability of the producer for vehicle defects.

Al Mureden (2012), pp. 1506 ff. Most recently: Al Mureden (2019), pp. 895 ff; Al Mureden and Ruffolo (2019), pp. 1704 ff.

Italian Law of 27 December 2017, no. 205, OJ 302. The Italian regulation in this field started with the adoption of the National Action Plan on Intelligent Transport Systems – ITS (D.M. 12 February 2014, n 44).

Italian Ministry of Infrastructure and Transport, Decree of 28 February 2018, n 70, OJ 90, on the implementation methods and operational tools of road testing of Smart Road solutions and connected and automatic driving. On Smart Roads decree, see Losano (2019), p. 423.

Italian Ministry for Technological Innovation and Digitization, and Italian Ministry of Infrastructure and Transport, Memorandum of understanding on innovation for autonomous and connected driving in urban and suburban areas, available at https://​www.​mit.​gov.​it/​sites/​default/​files/​media/​notizia/​2020-05/​Guida_​Autonoma_​MID_​MIT_​.​pdf, accessed on 15 June 2022. Still on the topic of innovation, but not strictly on autonomous vehicles, we report: Working Group on Artificial Intelligence and Blockchain, appointed by the Italian Ministry of Economic Development, on Proposals for an Italian strategy for artificial intelligence, 2019, available at: https://​www.​mise.​gov.​it/​images/​stories/​documenti/​Proposte_​per_​una_​Strategia_​italiana_​AI.​pdf, accessed on 15 June 2022; Italian Ministry for Technological Innovation and Digitization, Strategy for technological innovation and digitization of the country 2025, available at: https://​docs.​italia.​it/​italia/​mid/​piano-nazionale-innovazione-2025-docs/​it/​stabile/​index.​html, accessed on 15 June 2022, 2020.

DEKRA Study (2011) La sicurezza stradale di uomo e tecnologia. Strategie politiche di prevenzione, available at: https://​www.​dekra-roadsafety.​com/​media/​dekra-vsr-2011-it.​pdf, accessed on 15 June 2022; Kalra N, Anderson J, Wachs M (2009) Liability and Regulation of Autonomous Vehicle Technologies, Study report of Berkeley University of California, available at: https://​www.​rand.​org/​pubs/​external_​publications/​EP20090427.​html, accessed on 15 June 2022.

To an in-depth analysis of the ADAS definition and functioning, please see the technical introduction to this book.

In this regard, the so-called Machinery Directive 2006/42/EC intervened to harmonize the health and safety requirements that machinery must have and to allow the free circulation of products conforming to it within the European market. Autonomous vehicles would fall under the category of ‘machines’ provided by article 1, letter a) of the Directive and explained in its art 2. It regulates the obligations that producers must respect in order to be able to place the product on the market (Article 5, Directive 2006/42/EC). In particular, the producer must ensure that the machinery meets the essential health and safety requirements and, in addition, must provide the consumer with all the necessary warnings. Before being placed on the market, the product must positively pass the procedures for assessing the conformity of machinery provided in article 12 of the Directive. At the end of these procedures, according to Article 16 of the Directive, the manufacturer can issue the EC marking as declaration of conformity. Regulation of the European Parliament and of the Council 765/2008/EC of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 [2008] OJ L 218/30, regulates the marking procedure, by which the producer assumes responsibility for the conformity of the product with the EU rules. Further obligations on producers are provided by the Directive of the European Parliament and of the Council 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L 171/12.

Regarding the driving of an autonomous vehicle, requirements for driving license should also be changed, including the understanding and interaction with the ADAS and the onboard computer, characterised by a more or less high level of AI.

Calabresi and Melamed (1972), pp. 1096 f., state that the ability of the tortfeasor to prevent a given damage is taken into account, together with other conditions such as the ability of the same party to lower transaction costs.

The choice of producer’s liability could be justified based on the ability of the producer to (better) insure himself and therefore handle costs associated with the production and distribution of the product (including transaction costs). Castronovo (2006), p. 687.

European Commission Report and Staff Working Document, Liability for damage from defective products (Directive 85/374/EEC), 7 May 2018, COM 2018/246 final and SWD/2018/157.

On the legal aspects of robotics and Artificial Intelligence in Italy and Europe please refer to: Alpa (2020); Amidei (2019), pp. 1715 ff.; Capilli (2019), pp. 621–631; Costanza (2019), pp. 1686–1689; Pagallo (2017), pp. 615 ff.; Procida Mirabelli di Lauro and Feola (2020), pp. 508–558; Ratti (2020), pp. 1175 ff.; Ruffolo (2020a, b).

Bertolini (2013), pp. 235 ff., who also affirm that the issues of liability involving robotic applications fall within the product liability rules; Salanitro (2020), pp. 1246–1276; Santosuosso (2020).

Bertolini (2013), pp. 235 ff.

The interpretation according to the intention of the legislator can give rise to the so-called extensive interpretation of the law, with which the words of the law are given a broader meaning than the literal one (art 12 the preliminary provision to the Italian Civil Code).

Every national legal system is endowed with the character of completeness: it can not admit having a regulatory gap, but it must be able to give a solution to every possible conflict that is generated among those who are subjected to that legal system. However, the legislator can not foresee all possible conflicts, establishing as a rule for every possible case. Therefore, to fill the inevitable gaps, the art 12,para 2, of the preliminary provision to the Italian Civil Code, requires providing for the analogical application of the law (analogia). If a dispute can not be decided by a specific provision, the provisions regulating similar cases or similar matters must be applied (so-called ‘analogia legis’). The extrema ratio is to decide a legal case according to the general principles of the legal system (so-called ‘analogia iuris’, provided by same article 12, section 2, when there are no laws to regulate a specific phenomenon.

European Parliament and Council, Proposal for a regulation on laying down harmonised rules on artificial intelligence (artificial intelligence act) and amending certain union legislative acts, 21 April 2021, COM(2021)206 final (revised 3 November 2022).

European Parliament and Council, Proposal for a Directive on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive), 28. September 2022, COM(2022) 496 final.

European Parliament and Council, Proposal for a Directive on liability for defective products, 28 September 2022, COM(2022) 495 final.

Pagallo (2013) inaugurates the field of robot law, from the point of view of legal philosophers and positive law experts, exploring the three legal fields of law: criminal law, contractual liability and non-contractual liability.

Indeed, the proposed AI Act, Article 2, para. 2, provides that high-risk AI systems covered by EU harmonisation legislation listed in Annex II, section B, are generally not subject to the AI Act. This Annex lists Regulations 2018/858 and 2019/2144, which, in turn, now also address automated driving systems.

Bertolini (2016), pp. 291 ff.; Bertolini et al. (2016), pp. 381 ff., explains that normally, the parties are left free to decide whether to enter an insurance contract or not, in order to manage a risk, they are exposed to. However, in some cases, the legislator deeming that the risk associated to a certain activity is too high, or that moral behaviour may negatively affect the spreading of the damages that arise, and for this impose a duty to purchase insurance (normally third-party insurance). The traffic insurance, as well as the professional liability insurance, are examples of compulsory insurance.

Directive of the European Parliament and of the Council 2009/103/EC of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability [2009] OJ L 263/11.

To this general principle of compulsory insurance there is a derogation provided for in Article 5 Dir 2009/103/EC in favor of certain natural or legal persons, public or private, included in a list that the Member State must notify to other States and to the EU Commission. However, the Member State must take the appropriate measures to indemnify the persons for the damage caused in their own state or in that of the other Member States by vehicles belonging to the aforementioned persons exempt from compulsory insurance. To this end, it shall also draw up a list of the authorities or bodies responsible for the indemnification to be communicated to the Commission.

Art 22, Dir 2009/103/EC.

Italian Private Insurance Code, D.lgs. 7 September 2005, n 209, OJ 239.

The same prevision is provided at EU level by Art. 18, Dir 2009/103/EC.

Buffone (2016), pp. 157 ff. The direct compensation procedure operates only if: (1) the motor vehicle accident occurred in Italy, in the Republic of San Marino or in Vatican City; (2) it involved only two vehicles, both identified, insured and registered in Italy; (3) and if there has been damage to property and/or persons, but minor value. It seems clear, therefore, that this is an exception to the third-party scheme, and that, when applicable, operates according to the scheme of the first-party insurance, even if the requirements are different and far more specific for the direct compensation than the first-party insurance.

D.P.R.,18 July 2006, n. 254 regulations governing the direct compensation for damages arising from road traffic, OJ 199. In other words, these companies must establish a specific office, Company Service Reference Conventions Reference (SARC), for the management of the reports relating to the CARD between the member companies. The SARC also manages the relationships that derive from other agreements related to motor vehicle dealings, such as the Third-Party Transports Convention (CTT). Foreign insurance companies, on the other hand, must apply for membership of ANIA (Italian National Association of Insurance Companies) pursuant to Article 2 CARD.

The insurance premium is the amount that the insured party corresponds to the insurance company to obtain insurance coverage.

In the past, on the contrary, a restrictive interpretation of the rule was preferred.

In Italy, the transport contract is governed by articles 1678 ff., Italian Civil code.

Perlingieri (2015), pp. 1241 ss., wonders about new forms of compulsory insurance required by the development of robotics, assuming the use of a criterion based on the level of learning and adaptation of the robot: a greater ability to learn of the robot would result in less responsibility for the producer (taking account of its power to give instructions to the robot), while it would entail less responsibility for the user. The author starts from the assumption that the robot can not be recognized civil liability as it does not seem necessary to completely overcome the concept of a robot as a legal good (in Latin ‘res’). This reconstruction reflects the legislation currently in force in the different legal system and in the European one, but there is a strong impulse of innovation that could also lead to the recognition of the legal personality to the robot.

Bertolini et al. (2016), p. 387.

In this context, in Italy the art 132 ter, letter b), Italian Private Insurance Code, provides the duty for the insurer to apply a compulsory discount if on-board the vehicle are installed or are already preexisting electronic mechanisms that record the activity of the vehicle, called ‘black box’ or equivalent. After this first phase, as the vehicles become more and more autonomous and, at the same time, the driver will be denied the possibility of intervention during the driving phase, the responsibility will pass entirely to the producer, since there is no longer any subject qualifying as a driver. This will correspond to a new allocation of risk, which will probably result in an insurance system parametrised no longer on the driver but on the characteristics of the vehicle itself.

Franzoni (2010), pp. 1 ff.

In fact, as already explained, there is the semi-objective liability of the designer or the informer, and the strict liability of the manufacturer. Likewise, to the semi-objective liability of the driver is added the strict liability in certain cases expressly provided by the law.

The case of the civil liability for self driving cars is also explored by Calabresi and Al Mureden (2020), pp. 7 ff.; Davola and Pardolesi (2017), pp. 616 ff.; Ruffolo and Al Mureden (2019), pp. 1704 ff.

Reed et al. (2016), p. 5 explain that the product liability could be a good option for regulating machine learning damage (included that coming from self-driving cars) but, because it is a new technology no laws have yet in force.

For an in-depth analysis of the damage caused by semi-autonomous vehicles, please refer to Gaeta (2019). Concerning the European analysis of the data protection issues, see Gatt et al. (2018), pp. 1 ff. With particular regard to data protection and self-driving cars, may I also refer to Gaeta (2018), pp. 147 ff.; Gaeta (2017), pp. 1 ff.

A typical example of techno-regulation is represented by the data protection by design, expressly provided by the art 25 of the GDPR, which expressly provide that the product itself, thanks to the way it has been designed, has to guarantee the protection of the personal data of the data subject.

Al Mureden and Ruffolo (2019), pp. 1704 ff.

Abraham and Rabin (2019), pp. 127 ff.