Despite the recent amendment to road traffic legislation, public perception that autonomous vehicles have been given the green light in Germany, is over-shadowed by the fact that international provisions – at least for the time being – place considerable limits on the growth of driverless vehicles.

On 21 June 2017, Germany's 8th Amendment to the German Road Traffic Act (StVG) came into force. The aim of the Amendment is to facilitate the operation of highly or fully autonomous vehicles in Germany. In the Bundestag or lower house of the German Parliament, the Federal Minister for Transport and Digital Infrastructure justified the proposed legislation with the following words: "In plain language the draft legislation means that in future, a computer will be in charge at the wheel. During this time, the driver can avert his attention and surf the internet, check his emails and can stream films."

In order to guarantee the mutual recognition of CAVs both within and beyond the European Union, the technical pre-requisites for approval are largely determined on an international basis by way of international conventions. It is not legally possible for Germany, nor indeed any other Member State or third country to simply 'go it alone'. As long as international law fails to absorb the legislative advances of individual countries, there is the risk that the ambitious proposed legislation in Germany and elsewhere will be somewhat redundant. Given the multitude of contractual parties involved, any expectation that international conventions will be modified at short notice to cater to widespread adoption of autonomous driving must be viewed with a certain amount of scepticism. It could, therefore, still be some time before fully autonomous vehicles are on the road in anything other than a test scenario. If there is no consensus in the regulatory environment, it may be some time before drivers can take a break from controlling their vehicle during a journey and turn their attention to more pleasant activities, whatever the state of the technology.

Looking at the amendments to German law in the context of applicable international laws demonstrates the challenges to widespread adoption of autonomous vehicles.

The 8th Amendment to the Road Traffic Act

The Amendment, in the form of the new § 1a StVG, has introduced a requirement that vehicles with “highly or fully autonomous driving functions” (as defined by the Federal Highway Research Institute (Bundesamt für Straßenwesen) (BASt) 2012), must gain prior approval. A driver must be present in the car. The driver must be able to override or deactivate the autonomous driving function and communicate with the activated system at any time, including in any prescribed situations. If the provisions pursuant to § 1a StVG are satisfied, the driver may avert his attention from controlling the vehicle. He must, however, remain sufficiently attentive in order to be able to resume control of the vehicle at any time (§ 1b StVG). Fully autonomous vehicles which do not require the presence of a driver are not permitted.

Notwithstanding the introduction of § 1a StVG, international and European law continues to place considerable limitations on the adoption of vehicles with highly or fully autonomous driving functions in Germany. The reason for this limitation can be found in § 1a para 3 StVG, which stipulates that German law is subject to international law requirements in this area. Autonomous driving functions must be specified in international law or, altertnatively, prior approval must be sought in accordance with the Framework Directive 2007/46/EC.

The relevant international law regarding the use of highly autonomous driving functions remains restrictive. If highly autonomous driving functions contradict international provisions, they are prohibited under § 1a para. 3 no. 1 StVG. It is not just Germany but also the European Union which are bound by an international convention. This also prevents the grant of prior approval within the meaning of § 1a para. 3 no. 2 StVG:

Relevant international law provisions

There are a number of international provisions which are relevant to the adoption of autonomous vehicles. These include the Geneva Convention of the Economic Commission for Europe ECE of the United Nations 1958, on the uniform technical provisions for wheeled vehicles and the Vienna Convention of Road Traffic of 1968.

Geneva Convention of 1958

It is not just Germany and the other EU Member States which are party to the Geneva Convention but also the European Union itself which acceded to the Convention with resolution 97/836/EC. The Geneva Convention itself does not contain any provisions on permitted vehicles. These can be found in a number of World Forum of Harmonization of Vehicle Regulations, passed as implementing regulations. They are binding on the contractual parties unless objected to within six months.

These UN regulations in the context of the Geneva Convention are governed by the basic principle that, if in doubt, the main responsibility for the vehicle functions must always rest with the driver of the vehicle whose functions may not take over responsibility. The application of the automatically commanded steering function or ACSF requires under the UN Rule 79, that the main responsibility for the steering continue to rest with the driver of the vehicle. Autonomous steering within the definition of a highly or fully autonomous driving function pursuant to § 1a StVG is, therefore, excluded. Until this and other international provisions are modernised, highly and fully autonomous driving functions are not capable of being approved in Germany despite the amendment to the Road Traffic Act.

Work on the modernisation of the rules of the Geneva Convention has been ongoing for a number of years but little progress has been made so together with its implementing regulations and associated legal uncertainties, it constitutes a stumbling block to the approval of cars with highly autonomous driving functions, not only in Germany but in all signatory countries.

Vienna Convention on Road Traffic of 1968

The so-called Vienna Convention sets out international law requirements for the vehicles in international cross-border traffic. However, it is of little practical relevance for Germany in relation to the approval of largely autonomous driving functions. Unlike the Geneva Convention and the UN regulations passed for its implementation, the EU is not a party to the Vienna Convention and the Framework Directive is unaffected by it.

For vehicles which are approved in breach of the Vienna Convention, there is, however, a risk that in other contracting states of the Vienna Convention which do not belong to the European Union, permission for such cars to participate in road traffic will be refused.

Similarly to the regulations under the Geneva Convention, the Vienna Convention provides that the driver of the vehicle should “control” it. In 2016, the Convention was amended to the effect that autonomous driving systems were also permitted where they comply with international regulations or can either be overridden or deactivated. This appears to correspond with the rule in § 1a para. 2 no. 3 StVG. The drafting is somewhat unclear, however, so it is difficult to be certain about whether or not the Vienna Convention conflicts with the adoption of highly or fully autonomous driving functions.

EU law relevant to the approval of highly or fully autonomous driving functions

German law, in particular the approval of vehicle types, is primarily determined by European Union law. The provisions of the Framework Directive relating to an EU-wide approval procedure are implemented by the EC Vehicle Approval Regulation (EU-FGV).

The specific requirements for approval can be found in further secondary legislation of the European Union. Directive 2007/46/EC also incorporates in its Annex IV a series of UN regulations which the EU has adopted in the context of the Geneva Convention of 1958 as Community Law. The specific provisions of European secondary law, which – alongside the international provisions of the UN regulations – relate to individual aspects for highly and fully autonomous driving functions, tend to be rather sporadic, for example, Regulation (EC) 661/2009 has provisions relating to assisted systems (tyre pressure monitoring, road following warning, gear change display, electronic driving dynamics regulation), (EC) 347/2012 covers emergency brake assistance systems, and (EU) 2015/758 deals with eCall systems for alerting emergency services. This means that in the context of EU law, the UN regulations incorporated by way of Directive 2007/46/EC also have a restrictive effect on the use of highly or fully autonomous driving functions.

Outlook

With the amendment to the Road Traffic Act, Germany has made an essential, albeit not sufficiently far-reaching, first step towards the technical approval of largely autonomous driving functions. The potential of the new legislation cannot, however, be maximised as long as international laws such as the implementing provisions of the Geneva Convention of 1958, stand in opposition. Both the Federal Government and the European Commission have recognised the need to work as quickly as possible towards an opening up of international law in this area. For industry and research, this means that progress and efforts will be followed closely at an international law level, so that once international limitations fall away, the scope afforded by the amended Road Traffic Act in Germany and equivalent legislation in other countries, can be used to its fullest potential.