Our international Automotive Group takes a look at the latest developments around the world regarding driverless cars:
Following a call from the European transport ministers for more European coordination (Declaration of Amsterdam of 14-15 April 2016), the European Commission has launched several initiatives and developed a European strategy relating to Connected and Automated Driving ("CAD"). The European Commission's action mainly aims at ensuring cooperation between the different stakeholders from all EU Member States, and at preventing that the development of CAD leads to a fragmented internal market in the context of its Digital Single Market strategy.
The European Commission has not yet proposed any legislative evolution of the legal framework relating to CAD vehicles. However, it has set up a dedicated working group which has prepared preliminary recommendations on the need to work on legislative changes in the short term. It concluded that:
- EU Directives on liability for defective products (85/374/EEC) and on motor insurance (2005/14/EC) are sufficient for upcoming automated systems;
- There is no need for harmonisation on testing requirements at this stage (the Vienna and Geneva conventions are sufficient for testing as long as there is a driver/operator);
- There is a need to clarify liability relating to CAD data storage and to create a mechanism to regulate the access to the data;
- The development of CAD makes the 2010 Directive on Intelligent Transport Systems (2010/40/EU) more relevant and could be used as the basis to adopt a coherent set of rules at EU level in order to create a single market for CAD vehicles.
By Mathieu Relange, Associate, Brussels
The driverless car does not exist yet, at least in current Belgian legislation, as there is no legal qualification for what could possibly be considered to be an 'autonomous vehicle'.
The most significant obstacle however is not the need for a definition of an autonomous vehicle, but the legal requirement that all vehicles must have a driver (article 8.1 of the Belgian Highway Code). The automotive industry has not been standing still however, and has already been performing tests on Belgian roads. The Ministry of Mobility has been receptive to this, and to offer an encouraging framework for pilot projects has produced a Code of Good Practice containing recommendations to companies developing such technology.
Another major issue with regard to driverless cars concerns liability on the part of the driver or the car manufacturer. In the case of driver liability, the relevant provisions contain a specific reference to a human person (articles 1382 and 1383 of the Belgian Civil Code). The same applies for recourse for indirect liability (goods under custody – article 1384 of the Belgian Civil Code), as the human behind the wheel would still be held responsible for an act committed by the car.
Liability on the part of the car manufacturer may be civil or even criminal. The car manufacturer is liable for unsafe products that it has made available to the public (article IX.2 of the Belgian Economic Code). In this regard, not only the company may be prosecuted, but also its directors. From a civil liability perspective, a car manufacturer may also be liable, on a no-fault basis, for damage caused by a manufacturing defect (article 1 of the Belgian Product Liability Act of 25 February 1991).
Smart Cars and Personal Data
A growing trend towards autonomous vehicles is emerging in the automotive industry. However, the full scale deployment of SAE level 5 (completely autonomous) vehicles on roads, legally speaking, is currently not possible due to the limitations set out by the 1968 Vienna Convention on Road Traffic, to which 75 countries, including the Czech Republic, are parties. The Vienna Convention specifically requires the driver to be able to control his vehicle at all times so as to be able to exercise due and proper care, and at all times to be in a position to perform all manoeuvres required of him.
When comparing the progress in autonomous driving technology with the development of the legislation governing such technology, it is apparent that the legislation will soon have to adopt many changes in order to catch up.
In our article we focus on the state of the legislation on personal data processing, as the Czech Data Protection Agency has in the past released opinions with respect to video recording systems, unmanned aircrafts and dashboard cameras that are used for the processing of personal data by autonomous vehicles.
However, changes can be expected even in this field of law as the date of the General Data Protection Regulation's introduction is rapidly approaching, and talks of requiring ‘black-boxes’ and other gadgets which process personal data inside autonomous vehicles for safety and investigation reasons are surfacing.
New Danish rules allowing pilot projects with autonomous vehicles
In May 2017, the Danish parliament passed the necessary changes to the Danish Road Traffic Act making it possible to conduct pilot projects with autonomous vehicles on public roads. A specific pilot project may only be conducted with an approved vehicle, the entire project must be assessed by a certified assessor to make sure the project is safe, and the project must also be pre-approved by the Ministry of Transport in order for a project license to be granted.
Only projects with vehicles up to SAE level 4 (high automation) will be approved. Level 4 is an autonomous vehicle that can drive by itself without a driver present but where a driver can take remote control, and the approval will only cover specific roads in a specific area and within a certain time span. Projects with vehicles driven without the possibility of a takeover by a remote driver – ie fully autonomous cars - will not be allowed for now.
A project license will impose an obligation on the licensee to have insurance in place covering possible damages, and the licensee will have strict liability for all damages caused by the vehicle. The driver (present or remote) together with the licensee could also be held responsible for any criminal offence or violation of the Road Traffic Act committed during the test driving in accordance with normal liability rules.
Autonomous vehicles being tested on public roads and other developments in Finland
The first autonomous vehicles have been granted road traffic testing permits in Finland and they are now being tested on public roads. These vehicles are able to follow a pre-programmed route and avoid collisions with sudden obstacles without input from the driver.
However, the vehicles currently require the lane markings or sides of the road to be visible and this is considered quite a challenge in the arctic climate of Finland! Autonomous vehicles are part of several extensive development projects ongoing or planned for the near future in Finland relating to the automotive and transport sector.
These projects include major planned changes affecting the nationwide traffic infrastructure as well as significant amendments to the regulations concerning passenger transport. Our Helsinki office has for example advised the Finnish Ministry of Transport and Communications as well as the capital's metro and tram operator, Helsinki City Transport (HKL), relating to these changes as well as several private entities being affected by the developments.
France is expecting positive legislative developments this year regarding autonomous vehicles. Indeed, the new French President Emmanuel Macron promised during his campaign to improve the regulatory framework necessary for the development of autonomous cars.
A report issued in February 2017 by the Ministry of the Interior and the Secretary of State for Transport highlighted the fact that France is falling behind other countries and proposed 21 recommendations to build a strong government policy in favor of the deployment of autonomous vehicles. In particular, this report expresses the political willingness to amend the French Road Traffic Code to allow autonomous cars to circulate on public roads, to adapt provisions governing liability in case of accident and to resolve ethical issues related to inevitable accidents. Furthermore, the Decree dated August 3th, 2016 authorising the testing of autonomous cars on public roads should be ratified by the French Parliament in the coming months. Finally, the French Data Privacy agency (CNIL) is currently working on data protection aspects.
In other respects, the state authorities of France and Germany concluded a letter of intent in February for the implementation of an itinerary between Metz and the Sarre for the testing of autonomous vehicles. This would be the first international testing site in Europe and would be open to all automotive suppliers. The aim is to test the interoperability of the various technologies dedicated to communication of data between vehicles. France and Germany intend to remain one step ahead in the global competition surrounding autonomous vehicle technology.
By Eric Wallenbrock, Senior Counsel, Lyon
With the objective of creating legal certainty for both manufacturers and users of automated driving systems, the German Parliament has passed an amendment of the German Road Traffic Act which entered into force on 21 June 2017. The key amendments can be summarised as follows:
- The operation of a vehicle by means of automated driving functions (as legally defined in the amended Act) is allowed, if the function is used as intended
- The driver is allowed to turn his attention away from traffic events and vehicle operation if he maintains his perceptiveness so that he can immediately resume control over the vehicle
- if the automated system requires him to do so
- if he realises, or due to obvious circumstances must realise, that the requirements for the intended use of the automated system no longer exist.
- Vehicles with automated systems will record data on whether the vehicle was steered by the driver or the automated system, whether the system required the driver to take over the driving process and whether the system experienced a malfunction.
The amendments exclusively concern the road traffic law and therefore the use of automated vehicles on public roads in Germany. They do not cover the type approval law which is mainly governed by international and European law.
In Italy despite much interest in autonomous driving, Italian legislation is far from allowing and regulating this new technology.
Article 46 of the Italian Highway Code establishes that: "For the purpose of this Code, vehicles are all kinds of motor vehicles driven on the streets by a human driver". Accordingly, a vehicle with a high automation (SAE 4 level) or fully automation (SAE 5 level) driving system would not be permitted circulate on Italian streets.
From a civil law perspective, art. 2054 of Italian Civil Code provides that the operator of a vehicle is liable for the damage caused to persons or to property by operation of the vehicle unless he proves that he did all that was possible in order to avoid the damage.
The operator of a fully autonomous vehicle however cannot avoid any damage that the vehicle could cause as he could be considered a kind of passenger. But if he had the chance to deactivate the autonomous driving system and hence to avoid the damage, he could be considered accountable for this choice according to the above article.
The lawmaker is currently discussing some possible reforms to the Highway Code, and this could be the occasion to permit and regulate the autonomous driving and connected vehicles.
Autonomous transportation core topic for policy on traffic
Autonomous transportation remains a core topic for the Netherlands policy on traffic. It was recently mentioned as one of the focal points in the annual report of the Ministry of Infrastructure and Environment, published on 17 May 2017. Autonomous transportation is part of the wider theme of Green & Smart mobility, as formulated by the (informal) Environment and Transport Council. Several highlights in this area were mentioned in the annual report, most importantly the declaration of Amsterdam, a joint European agenda intended to stimulate innovation in the field of green and smart mobility and to address related topics such as privacy and security.
The Netherlands has also focused on the topic of connected and autonomous transportation during its recent EU presidency.
Previously, on a national level a broader outline was presented to the lower house of parliament setting out the requirements to make the regulations and infrastructure future-proof. The general note, however, was made that in order to create effective policies, Europe-wide measures would be required. Therefore the focus is very much on the declaration of Amsterdam and subsequent developments.
By Roelien van Neck, Partner, The Hague
Public consultation of the Bill on Electro-mobility and Alternative Fuels dated 26 April 2017 (the "Bill'') has now been completed. The Bill provides a definition of 'autonomous vehicle', and a legal framework for testing autonomous vehicles on public roads in Poland.
Under the Bill, an autonomous vehicle is an electric vehicle which is equipped with technology and systems which control the vehicle's movement and allow the vehicle to drive without any driver interaction.
Permit for testing autonomous vehicles
To obtain a permit the autonomous vehicle testing organiser must submit a formal written application to the appropriate road authority. The application must meet all formal and legal requirements provided by the Bill, including all required attachments.
Test vehicle organiser obligations
According to the Bill, the test vehicle organiser will be obliged to:
- Cooperate with the local police to ensure that safety requirements are met during the tests
- Ensure that an individual with a driving license is inside the test vehicle during the tests
- Inform the public about the tests and the proposed test vehicle route
- In cooperation with the local road authority, prepare special road signs informing road users about the autonomous vehicle testing.
Recently, the head of the Directorate General of Traffic (DGT), Gregorio Serrano, announced that the DGT will work with the relevant authorities on a so-called '21st century Traffic Act' which will regulate the driverless cars regime in detail.
Until now, no specific laws concerning this have been enacted in Spain: autonomous vehicles are currently governed by the broader regulatory framework that is applicable to vehicles. According to Mr Serrano, this should change, as Spain is a frontrunner in technology and innovation and should therefore be at the forefront of automotive vehicle regulations, ensuring that their implementation meets all security standards.
It must be noted that despite not being regulated, Spain has occupied an advantageous position compared to other countries up until very recently. This is because the country has not ratified the United Nations Vienna Convention on Road Traffic (1968), which expressly required, until March 2016, the presence of a driver in vehicles. This has allowed the earlier testing of autonomous cars on Spanish roads to be open to the public, and has enabled Spain to become a "test country", ahead of other countries.
Mr Serrano's recent announcement represents a step forward in furthering Spain's already advantageous stance, placing the country in an even more strategic position with a view to laying the groundwork for the deployment of autonomous vehicles.
The UK Government announced a new Automated and Electric Vehicles Bill as part of the Queen's Speech on 21 June 2017 with the stated intention of ensuring that the UK "remains a world leader in new industries, including electric cars." The UK Government's previously proposed legislation in this field, the Vehicle, Technology and Aviation Bill, was dropped when Parliament was dissolved after the calling by Theresa May of the 2017 General Election. However, that previous Bill's core proposal of extending compulsory motor vehicle insurance to cover the use of automated vehicles has been carried forward into the new Bill. The fine details of the proposed new law is a matter for future consultation, although (based on previous discussions) it is reasonable to assume that the new law will seek to carve out exclusions to insurer liability in limited circumstances, including where an accident results from the automated vehicle owner making unauthorised modifications to the vehicle's operating system and/or failing to install required updates.
Further, the new Bill proposes to give the UK Government powers to require the installation of charge points for electric vehicles at motorway service areas and large fuel retailers, and to require a set of common technical and operational standards to ensure that charge points work seamlessly across the UK.
In general, the UK Government has expressed an intention to take a step-by-step approach to regulatory reform in this area, so as to ensure that regulatory changes match technological developments.
The National Transport Commission (NTC) and Austroads, with the support of all levels of Australian Government, has released Guidelines for Trials of Automated Vehicles in Australia. The NTC is an independent advisory body to advise government on transport reform. Austroads is the peak organisation of Australian transport and traffic agencies.
With the release of the Guidelines and the support of all State Transport Ministers, the path is now clear for genuine trials of autonomous vehicles on Australian roads. This is an exciting step on the path to the mass adoption of autonomous vehicles and an encouraging sign that Australia is keeping up with other developed countries in the adoption of autonomous vehicles.
At its heart any trials will still rely on the ability of each state to exempt the proposed conduct from existing rules. However, by releasing guidelines, NTC and Austroads have legitimised a way forward to enable and facilitate testing to begin in earnest.
Coupled with the decision of ANCAP recently that will require Autonomous Emergency Braking to obtain a 5 star safety rating it is clear that the progressive automation is not only coming, it's safer.
There is an explicit acknowledgement and contemplation in the guidelines that trials will differ and involve different types of automation, location technology and risks. It asks applicants to submit an application that contains and addresses (or explains why it doesn’t need to address) a range of criteria, including key management criteria, a clear safety management plan, suitable insurance and data collection/dissemination.
A grand and yet modest ambition – autonomous cars in China
Autonomous cars are now being tested in various cities in China. They are also much discussed in the media following Baidu's high profile announcement of its plan to challenge Google's leading position in the development of autonomous/driverless cars. What is the Chinese government doing to support the development of autonomous cars? What are the legal challenges which it is likely to face, as China puts more emphasis on its laws and regulations?
As with the previous 12th Five Year plan, China's 13th Five Year Plan highlights a number of key technologies for which significant developments are intended to be made, including in driverless cars. The ambition of China however is a modest one.
In the "Mid- to Long Term Development Plan of the Automotive Industry" issued by the Ministry of Industry and Information Technology on 6 April 2017, in respect of autonomous cars, China expects the following:
- By 2020, more than 50% of motor vehicles will be installed with Driver Assistance (DA), Partial Automation (PA) and Conditional Automation (CA);
- By 2025, more than 80% of motor vehicles will be installed with DA, PA or CA; and
- by 2025, cars with High Automation and Full Automation will begin to enter the automotive market.
One of the reasons of the measured pace proposed by the Chinese government is that the current Chinese legal and regulatory system does not address key legal issues arising from autonomous cars, including related traffic offences, liabilities (both criminal and civil), vehicle registration, and sharing of telematics information. There is currently limited national and industry standards on autonomous cars to guide the relevant manufacturers. The Chinese government is now plugging the gap by setting up a new subcommittee under the existing Automotive Standardisation Committee. The new subcommittee, the Connected Smart Automotive Subcommittee, will be responsible for developing national standards on technologies concerning sensors, autonomous assistance, autonomous driving and information services which directly relate to telematics information. Relevant government officials have also made it clear that all relevant laws and regulations will need to be updated as and when autonomous cars become widely available to the general public in China.
Singapore investing heavily into developing driverless technology
In the past year, a multitude of initiatives – both private and public – have been launched in Singapore, with the aim to make Singapore a leader in driverless technology. Among them is a recently announced joint venture between nuTonomy, the driverless vehicle developer which launched a test for driverless taxis last September, and French automobile giant Peugeot. In addition, public institutions have become involved: with the Nanyang Technical University and the Land Transport Authority ("LTA") developing a 1.8-hectare test circuit for autonomous vehicles ("AVs") which will simulate the environment of public roads for AVs enhancing the ability of AV technology to adapt to traffic conditions and follow traffic rules. LTA and the land systems engineering branch of ST Engineering have recently agreed to introduce a three-and-a-half year AV trial with the aim of having driverless busses transporting passengers along fixed routes, including the possibility of several driverless pods on the island of Sentosa which can be summoned via a smartphone.
Singapore's Parliament amended the Road Traffic Act ("RTA") in February of this year, setting different standards for AVs. This included allowing for AV trials to be conducted on public roads and exempting AVs, their operators and those in charge of said trials from existing standards of the RTA. The key provision of the RTA that no longer applies to AVs is the one making the human driver of the vehicle responsible for its safe use. In the debates leading up to these changes, public officials were very vocal about the potential AV technology has for Singapore and the potential benefits they offer, such as increasing fuel efficiency and decreasing road accidents. Regulation regarding AVs is still in its infancy as researchers and government assess the role AVs will realistically play in Singapore and where the hazards lie. Nonetheless, given the amount of investment by different groups in various industries to develop the technology, it's likely that AVs will eventually become an important part of the transportation infrastructure.
The United Arab Emirates, and in particular the Emirate of Dubai being the futuristic city that it is, continue to welcome and encourage the dawn of autonomous vehicles.
The Dubai government aims to be the smartest city in the world and has committed in its Dubai Autonomous Transportation Strategy to have 25% of all transportation in Dubai be autonomous by 2030.
Dubai is evidently taking steps to achieve that goal as the Dubai Roads and Transport Authority has announced that they have entered into a contract for the supply of 200 autonomous Tesla cars to be used in their limousine service. Tesla expects to ship these cars into Dubai by July of this year.
With Tesla bringing its first fully autonomous cars to the UAE market this summer, and unofficial mentions of dedicated autonomous car lanes, the autonomous car industry is set to continue to grow in the UAE.
We expect to see further activity in the market as well as regulation from the UAE government on autonomous cars to aid its 2030 strategy.