The advent and momentum gained by Generative AI erupted into the EU regulatory scene signalling a significant paradigm shift in the AI landscape. The AI Act has struggled to embrace the eruption and extraordinary popularity of Generative AI and managed to provide for specific solutions designed for these models. Nonetheless, there are legal and regulatory implications of Generative AI that may exceed the proposed solutions. Understanding the paradigm shift that Generative AI is likely to bring will allow us to assess the sufficiency and adequacy of the measures adopted and to identify possible shortcomings and gaps in the current EU framework. Generative AI raises specific problems in the compliance of AI Act obligations and in the application of liability rules that have to be acknowledged and properly addressed. Multimodality, emergence factor, scalability or generality of tasks may mismatch the assumption underlying the obligations and requirements laid down for AI systems. The chapter explores whether the current ecosystem of existing and still-to-be adopted rules on AI systems does fully and adequately address the distinctive features of Generative AI, with special consideration to the interaction between the AI Act and the liability rules as provided for the draft AILD and the revPLD.

The previous chapter has presented the general proof rules of causation in competition damages actions. These standard rules burden the claimant with the proof of the essential elements of a tort, including causation. However, the claimant may find it very difficult if not impossible to prove causation, especially when information is limited or is not accessible. As observed in Chapter 5, the standard proof rules place the risk for the proof of the claim and the risk of error due to evidential uncertainty on the claimant. The rules allocating this risk are mainly the result of policy-based decisions aiming at distributing the risk fairly between the parties based on a moral statement. However, on the basis of equally justifiable policy and moral choices, it is possible to create exceptions to this rule in two cases: (1) when the information is readily available to the other party and (2) when it is fair, according to the type of responsibility, to allocate the risk differently.