German Bundestag adopts law on automatic driving
Last Thursday, the Bundestag, the lower house of the German parliament, approved legislation on cars that can drive partially or completely automatically (“automated vehicles”). The CDU/CSU and SPD factions approved a version amended by the Bundestag’s Transportation Committee of a bill proposed by the Federal Government to amend the Road Transportation Act [Straßenverkehrsgesetz (StVG)].
“When used as stipulated”
The intention is to add to the StVG a provision stating that motor vehicles with automated systems can be used in traffic on public roads in such a way that the driver can transfer control of the vehicle steering to the technical systems in certain situations. Thus, operating automated vehicles is to be permissible “when used as stipulated”.
According to the newly added Sec. 1a (4) StVG, under such circumstances, the user of the automated vehicle is to remain the vehicle’s driver, i.e. not be replaced by the partial or completely automated system during the automated phase. This would only be the case with “autonomous driving”, in which there is no driver, only passengers. This clarification is necessary because up to now, a vehicle driver has been defined as the person who steers the motor vehicle and has the actual control of the steering wheel.
Liability issue: “immediately regaining control of the vehicle”
When using the automated function, the vehicle driver must observe specifically regulated duties regarding immediate recovery of control. According to Sec. 1b (2) of the amendment to the StVG, the vehicle driver is obligated to immediately recover control either upon request by the system or, absent such request, when she/he recognizes or must recognize due to obvious circumstances that the “prerequisites for stipulated use” of the automated driving function are no longer fulfilled. In the future, a driver’s failure to comply with this due diligence obligation can trigger (fault-based) liability pursuant to Sec. 18 StVG. Thus, failure to comply with the duty to recognize a “recovery situation” can also constitute a breach of a due diligence obligation and result in liability.
If the driver is not obligated to pay damages for the accident, the vehicle owner, as in the past, can be deemed subject to damages liability under no-fault endangerment liability (Sec. 7 StVG).
Reactions to criticism
Criticism came from many quarters that the user would be subject to draconian liability risks. During a hearing in the Bundestag, experts stated that the desired added value of automated systems would not be given if the driver had to be vigilant the entire time so as to be able to recover control “immediately”. The current version of Sec. 1b StVG now contains the passage “The vehicle driver is permitted (…) to turn his/her attention away from traffic conditions and the vehicle’s steering wheel”. However, “she/he must remain so alert to outside influences” that he/she can recover control “at any time”.
Another recommendation was that areas of responsibility be separated and the manufacturer be made more responsible for phases when the system is driving. Liability on the part of the manufacturer can currently be drawn primarily from product and manufacturers’ liability. However, the owner and driver liability situation pursuant to Sec. 7, 18 StVG remains unchanged for now. No explicit mention of manufacturer liability is made.
Much criticism has also been heard regarding the planned data storage device (“black box”), which is intended to clarify liability issues, especially in the event of accidents. Objections were raised against the previous version due to the lack of specific stipulations regarding intended purpose, deletion and use of the data as well as the design of the technical storage medium.
Sec. 63a of the StVG as amended stipulates that location and time information taken from a satellite navigation system is to be stored in certain cases: when control of the vehicle is transferred between its driver and automated systems, the system requests control recovery or a technical disorder occurs. According to the recently adopted draft law, the data storage period is to be limited to six months unless the vehicle has been involved in an accident, in which case the data is to be deleted after three years.
The adopted draft is an attempt to align strong technical potential with safety issues and apportionment of liability. The official explanatory memorandum of the draft law states that until efforts toward a European solution bear fruit, national laws must be passed. It remains to be seen whether these changes will satisfy the critics. If the upper chamber of the German parliament, the Bundesrat, does not raise any objections, the current version of the amendment of the StVG will enter into effect.
Any Questions? Please contact: Dr. A. Dominik Wendel, Olivia Greiner
Practice Group: Automotive & New Mobility