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Germany introduces law permitting automated vehicles

The German federal government has approved a Bill changing the country's Road Traffic Act to allow the use of automated vehicles on public roads.14 Jul 2017

The Bill defines what constitutes a highly- or fully-automated vehicle. The system must, amongst other things, be able to comply with traffic rules, recognise situations that require human input, and allow override by the driver at any time. It does not cover 'automated' vehicles – referred to as level 5 vehicles – that do not need any driver or that do not have a steering wheel and pedals.

Under the new rules, drivers must only operate automated vehicle functionality within the manufacturer's instructions on the "intended use" of such function and the vehicle must itself be able to inform the driver if they are using it outside the limits of its intended use.

Munich-based expert on legal aspects of connected and automated cars Stephan Appt of Pinsent Masons, the law firm behind Out-Law.com, said: "It remains to be seen whether this 'intended use' concept works out as it leaves it to the manufacturers to define under which circumstances the vehicle actually may be operated in automated mode. It's a flexible and technology neutral approach which gives manufactures freedom to design and define the level of automation considering what their car can and what it can't handle, but some argue that it also opens the door for extensive disclaimer language in the original equipment manufacturer's (OEM's) system description for the purpose of limiting their liability."

"The requirement under the Act that the vehicle must be designed to point at any use contrary to the system description might have a limiting effect in this context, though. At the same time this requirement might become a challenge for OEMs to develop technology that reliably foresees and detects such unintended use. Failing to do so would, strictly speaking, disqualify the vehicle from being a 'vehicle with highly- or fully-automated driving functions' resulting in the driver not being permitted to use the functions on the one hand, and warranty and liability implications for the OEMs or car dealers that have sold the car as a 'highly- or fully-automated car', on the other," Appt said.

"Ultimately, it seems worthwhile for industry to come up with an industry standard on intended use, not the least to promote safety, as it seems practically impossible even for educated drivers to reliably apply and comply within the limits of 'intended use' if this term would have a different meaning depending on which car you drive. This issue could become more prevalent in a future scenario of extensive car sharing when the use of multiple shared car makes will be common place," he said.    

The new laws do not require drivers to remain focused on the road at all times, but they must be able to react "without undue delay" if the system prompts them to do so, or they themselves realise it is needed.

Appt said that scenario triggers further questions, such as which activities the driver is allowed to partake in when in the vehicle - sleeping will obviously be out of the questions – and how quickly the driver must take over control, i.e. what the term 'without undue delay' means in practical terms.

"We may see a discussion about whether the use of tablets, smartphones and other electronic means of driver distraction in future cars will need to be connected to the car's system so that in the event of a required handover, the vehicle can switch off all potentially driver distracting applications to ensure a driver's full attention and allow them to assume control without undue delay," Appt said.

"Where the new law requires the drivers to take over when they realise, or 'due to obvious reasons' must realise, that the preconditions for automated driving mode is no longer fulfilled, it will be the courts that eventually define under which circumstances this is the case and how this relates to the general freedom the legislation providers to drivers to avert their attention to traffic and from controlling the vehicle. This–could cause uncertainty for early adopter drivers of such cars," he said.

Under the new laws, automated vehicle manufacturers will be required to install a 'black box' that can identify whether the human driver had control of the car at the time of any accident, to identify liability.

"There are a number of issues to be discussed further, such as the question which third parties will actually be entitled to request access to the data in order to 'assert, satisfy or defend' legal claims, as well as questions around data protection, data ownership and access to the data generated in automated vehicles in general,", Appt said.

Appt said the Act was heavily criticised for not providing for a new liability regime for automated vehicles that included direct liability of manufacturers. Instead, lawmakers kept up the principle that the driver and registered owner of the vehicle are primarily and directly liable instead of providing for a new direct route through to the manufacturer when incidents have occurred during automated mode.

Under this framework, the driver will not be automatically exempt from liability if the vehicle is in automated driving mode, but will be able to take recourse if their use of that mode is lawful. Liability of the driver or registered owner of the vehicle is now limited to an amount of up to €10 million for death or injury stemming from accidents caused by automated vehicles, which is an increase by 100% compared to prior legislation. The maximum liability for aggregate amount of liability for damage to property has been set at €2m.

Appt said: "The liability caps are to be understood as a limit for the aggregate liability resulting from a specific incident, which means that where claims raised by a number of claimants affected exceed the aggregate amount of the cap, the individual claimant will only be able to claim a respectively reduced amount."

Twenty nine European countries, made up of members of the EU and of the European Economic Area, agreed in March to increase cooperation on testing connected and autonomous vehicles.

Appt said cooperation would also be welcomed on setting new legal frameworks to account for the use of automated vehicles,

"Without enactment of similar legislation throughout Europe, automated cars permitted in Germany would not be allowed to operate in other countries, or at least would need to have their automated systems disabled every time they cross the border," he said.

However, despite the fact there are "many open issues" remaining to be resolved, Appt said the

amendments to the German Traffic Act are "a first big step forward".

"It is always a challenge for lawmakers to keep up with disruptive technology and instead of waiting, the German legislative has shown a degree of determination in supporting the demand for a legal basis for automated vehicles in a very focused and extremely expedited way," Appt said. "It seems important to start with a first legislative move and then move on in iterative legislative steps as technology develops and  political, ethical and legal discussions move forward too."

"Now that the amendments to the Traffic Act have been enacted, all the stakeholders involved in framing the legal environment of automated cars must not stop the discussion but rather feel encouraged to drive it forward," Appt said.