At a Glance: Autonomous Vehicles

 

• Europe
• Asia Pacific
• Middle East

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Europe

EU

The European Commission has recently issued communications, consultations and initiatives as part of the EU's "Digital Agenda" to support the introduction of Connected and Automated Driving ("CAD") including:

• The Communication on Automated Mobility which makes proposals to revise minimum standards for motor vehicle safety, to update the rules on road infrastructure safety management, and to introduce new rules on the sharing of vehicle data.
• A Consultation on issues arising from the use of connected and automated vehicles which focused on data protection and governance, privacy, cybersecurity and the use of 5G commercial band.
• The Co-operative Intelligent Transport Systems (C-ITS) initiative which presents a strategy for the coordinated deployment of co-operative intelligent transport systems to avoid a fragmented internal market.

  A new vehicle type approval regime under EU Regulation 2018/858 will come into force on 1 September 2020 which, in particular, raises the quality level and independence of vehicle type-approval and testing; increases checks of cars that are already on the EU market; and strengthens the current framework for EU type-approval through the introduction of provisions on accreditation and market surveillance.

By Lawrence Freeman, Senior Counsel, Brussels

Belgium

In 2016, the Belgian Ministry of Mobility issued a Code of Good Practice containing recommendations to companies willing to test automated assisted driving technologies or vehicles in public areas in Belgium. This Code of Good Practice detailed the minimum requirements considered necessary by the competent authorities in order to ensure road safety and minimise potential risks. It also provided a definition of an autonomous vehicle and a fully autonomous vehicle.

However, as Belgian law still required that all vehicles must have a driver (art. 8.1 of the Belgian Highway Code); this constituted a major hurdle for the organisation to test in public areas.

This hurdle was overcome by the Royal Decree of 18 March 2018, amending the Belgian Highway Code, such as to allow the Belgian Federal Minister of Mobility to deviate from all provisions of the Belgian Highway Code in the framework of tests with automated vehicles. Such deviation from the current applicable law is subject to conditions and must be granted only for a limited period of time.

As a consequence, as of 1 May 2018 (date of entry into force of the Royal Decree), car manufacturers and technology companies operating in the autonomous vehicles market are allowed – subject to an authorisation from the Ministry of Mobility - to carry out pilot tests on public highways without a driver, under the proviso that an operator should be monitoring the car's trajectory remotely from a control room.

Several such tests have been carried out in the meantime, inter alia in September 2018, when an autonomous shuttle drove for three months taking visitors to a tourist site – the Caves of Han - in the south of Belgium, on a route of 500 meters.

By Auriane Schockaert, Associate, Brussels

Czech Republic

Autonomous systems are associated with the risk of being unable to identify the cause of damage these systems could cause and the impossibility to determine who caused the damage. This is due to the systems’ dependence on data inputs beyond the operator's control and due to machine learning technology. In order to ensure fair compensation to persons to whom autonomous systems cause damage, the responsibility for such damage should be construed as objective. The operators of the autonomous systems should primarily bear the responsibility, since they have the best knowledge of the specific use of these systems.

Creators of the autonomous systems should bear secondary responsibility. However, this secondary responsibility should not be absolute in order to provide motivation for implementing preventive measures. Existing legislation in the Czech Republic should be modified in relation to autonomous systems by allowing for liberation if the manufacturer proves that it has made the best effort to prevent damage.

These modifications are capable of ensuring a reasonable incentive on the part of the creators of the systems to implement effective preventive measures without risking that the liability would discourage them from developing a priori dangerous but socially beneficial systems. Injured parties would not lose the possibility of fair compensation due to the objective liability of the operator.

It would be prudent to complement the system of objective liability with a system of compulsory insurance and coverage of uninsured damages. The latter is already in place for existing motor vehicles. The determination of the amount of premiums may prove problematic as it cannot be typified at the outset and will need to be determined individually on a case by case basis.

It would be appropriate to implement such a system of liability, including its limitation and compulsory insurance, through a directive at the European level. For these purposes, a regulation would hardly be functional due to terminology and other specificities of national legislation regulating civil liability; as well as due to the already existing rules on liability for defective product contained in an EU directive.

By Martin Spicka, Counsel, Prague

Finland

Favourable testing regulations and positive government support for autonomous systems have led to Finland taking a key role in the development of autonomous vehicle technology.

Road traffic legislation in Finland allows autonomous vehicles to be trialled and tested on public roads provided that the tester obtains a road traffic testing permit. A number of road traffic testing permits have been granted in Finland and several trials have been carried out on public roads. For example, between 2016 and 2018 an extensive research project was carried out in Helsinki and its regions to test the use of automated bus services with the public. These automated vehicles were able to follow a pre-programmed route and avoid collisions with sudden obstacles without input from a driver.

However, the largest obstacle to operating automated vehicles in Finland is the requirement for lane markings on the sides of the road to be visible, which is quite a challenge in the arctic climate of Finland. Several research projects are ongoing to address this issue and in early 2019 new trials are expected to take place in Helsinki for an autonomous shuttle bus which will be able to operate in all weather conditions.

The Finnish government has shown positive support for the development of autonomous vehicle technology. In 2019 the Ministry of Economic Affairs and Employment of Finland agreed to provide government funding for the launch of the Research Alliance for Autonomous Systems (RAAS). RAAS will launch a cross-sector "innovation ecosystem" by 2020 to bring together research parties, generate synergy benefits and support mutual learning in the field of autonomous systems.

Several extensive automotive and transport sector development projects are ongoing or planned for the near future in Finland which will have an impact on the use of autonomous vehicles. These projects include major planned changes affecting the nationwide traffic infrastructure as well as significant amendments to the regulations concerning passenger transport.

By Maria Carlsson, Partner, and William Schofield, Associate, Helsinki

France

France is awaiting the passage of two pieces of proposed legislation to be adopted within the coming months: the “loi PACTE”, whereby the text has been adopted by French National Assembly and is being examined until February 12, 2019 by the French Senate, and the “loi d’Orientation des Mobilités” (“LOM”), which will be examined by the French Senate in March 2019.

The “PACTE” bill seeks to provide the complete regulatory framework to allow for broad open road testing of autonomous level 3 to 5 vehicles from the beginning of 2019. This implies major changes in French regulations, which are currently being examined in the framework of a working group led by the Ministry of Home Affairs.

The “LOM” bill sets the conditions to access the vehicle’s data, in regard to the investigation of accidents, public service duties (e.g. road safety, traffic management, and infrastructure asset management) and economic activities whose development depends on certain data produced by automated vehicles.

With regard to the challenges encountered while developing automated public transport, France decided to develop a regulatory framework laying down the safety requirements for “shuttle” type vehicles (9 to 16 seats) and the traffic conditions for the operation of the automated driving system, as well as a reference system to evaluate the safety of the shuttles’ routes based on an analysis of the hazards of autonomous shuttle circulation in urban areas and on experiments.

These regulations aim at implementing an approval system for “shuttle” type vehicles and a benchmark to evaluate road safety in 2019.

By Eric Wallenbrock, Senior Counsel, Lyon

Germany

German legislation has set the regulatory framework for autonomous driving back in 2017, with a couple issues yet to be further specified. Autonomous vehicles (at levels 3 and 4) must allow for manual oversteering at any time, and provide suitable warning signal functions to call for the driver to resume control.

The driver (including those activating autonomous functions) must remain perceptive (“wahrnehmungsbereit”) to resume control whenever (i) the vehicle requires them to do so or (ii) the driver becomes aware or – due to apparent circumstances – should become aware that the conditions for autonomous drive are no longer given (Sec. 1 lit a, b German Road Traffic Act (RTA)). The event data recorder (EDR) installed in each vehicle records the position and movements at any time in order to identify failures of the vehicle or the driver’s conduct (Sec. 63a RTA). Third-party access to that data is limited to law enforcement measures, including civil claims by third parties. The liability coverage is doubled against the coverage for pure manual driver liability (Sec. 12 RTA). The provisions on autonomous drive are to be reviewed at the end of 2019 (Sec. 1 lit. c RTA).

Currently, the debate is ongoing which data controller should store such in-vehicle data at which location (locally, in a cloud structure, possibly with a data trustee rather than the OEM?). Further, it remains to be seen how the technical requirements on warning signals are set and implemented at the level of series permissions (including dealing with increased latency during long-hour drives, day/night shifts etc.). In addition, stakeholders are discussing legal uncertainty and allocation of risk between the driver, vehicle owner, OEM and connectivity providers in regard to network failures and data corruption, which should be resolved by the legislator.

By Alexander Duisberg, Partner, Munich

Hungary

Vehicle manufacturing has become one of the leading industries in the Hungarian economy. For this reason the Hungarian government aims to create an attractive environment for vehicle manufactures doing business in Hungary, especially for R&D purposes.

Specific Government actions to realise these goals include:

• Building autonomous, connected, and electric vehicle test sites.
• Updating legislation related to the testing of autonomous, connected and electric vehicles.

Test sites

The Government has initiated the construction of a site in Zalaegerszeg, in western Hungary, designed for both conventional and autonomous cars. The site features an urban section where it will be possible to test up to 70 vehicles simultaneously. Also, Bosch Hungary has received government backing to build a separate 10,000 m2 test track where it will focus on automated driving and electric mobility.

New rules aimed at clarifying the rules of autonomous vehicle R&D

The Hungarian Government has implemented an update in the rules regarding the testing of autonomous vehicles in NFM regulation No. 11/2017.

We highlight below the following relevant concepts which this reform introduced:

• Autonomous vehicle for development purposes. The legislative reform introduced this new legal category. A vehicle qualifies as an autonomous vehicle for developmental purposes if the vehicle serves the development of autonomous operation, and includes a test-driver who can manually intervene in the operation of the vehicle if necessary. The relevant decree also lays down a regulatory framework to categorise vehicles based on their level of autonomy on a scale between 0 and 5. The categorisation follows the guideline of the Society of Automotive Engineers.
• Ministry authorisation. The new legislation introduces a registration requirement for vehicle manufacturers to conduct their testing operations. The vehicle manufacturer’s development activity must be performed in accordance with the ISO 26262 standard as a requirement of the registration.
• Rules on security and liability. The rules include several guarantees to ensure the safety of the testing operation, e.g. the testing of the vehicles’ autonomous functions can only be performed on the pre-approved routes. Operational liability for the autonomous vehicle lies with the developer of the autonomous vehicle.

Although the specific rules and regulations for the use of semi-autonomous or fully autonomous vehicles on public roads in Hungary are still to be drafted and adopted, we remain optimistic that this will happen in due course in order for Hungary to realise the local potential in autonomous vehicle development.

By Daniel Arányi, Senior Associate, Budapest; Adam Simon, Associate, Budapest; Karim Laribi, Junior Associate, Budapest

Italy

On 28 February 2018 the Italian Ministry of Infrastructure and Transport published Decree n. 90, the so-called "Smart Road Decree", which represents the green light to smart roads and road testing of autonomous vehicles in Italy.

According to the Decree, an autonomous vehicle shall be equipped with technologies capable of adopting and implementing driving behaviours without the need for active intervention from the driver, in certain road areas and external conditions.

The Decree includes a number of novelties, in particular it provides the definition of a "Supervisor" and his/her liabilities.

Pursuant to art. 1, par. 1, sub j) of the Decree, the Supervisor shall always be able to take control of the vehicle a) regardless of the degree of automation; b) in any situation if the need arises; c) by acting on the vehicle's controls over automated systems.

Therefore, the Supervisor is the "person responsible for the circulation of the vehicle". This person becomes the "driver" when he or she takes on the actual driving in manual mode.

There is a clear need for legal coordination between the rules of the Smart Road Decree and other Italian legal provisions, both in Civil and in Criminal Law as well as in the Highway Code, since so far they refer only to the driver's liability.

By Gian Marco Rinaldi, Associate, Milan

Netherlands

Autonomous transportation remains a core topic for the Netherlands' policy on traffic. It is the government's ambition to increase the presence of autonomous vehicles on Dutch roads. The current government's coalition agreement states that the Netherlands will take into account autonomous vehicles in the design, construction and maintenance of infrastructure and a budget has been reserved for stimulating intelligent transport systems, including autonomous vehicles.

Recently, an autonomous driving experimentation law has been adopted by Parliament, which is expected to enter into force in the near future. Currently, experiments with automated motorised vehicles are only permitted on the condition that a human driver is present in the driver's seat. The new law is designed to allow for experiments without a driver physically present. As such, it caters to autonomous driving systems of levels 4 and 5.

In terms of the allocation of liability, the new experimentation law is consistent with the current one. Both laws place liability with the 'legal driver', i.e. the person in the driver's seat or the person operating the vehicle remotely. This is also in line with recent case law, in which it has been decided that drivers remain fully liable when their vehicle is operating on Autopilot.

By Roelien van Neck, Partner, and Shima Abbady, Associate, The Hague

Poland

Poland is working hard to join the group of "electromobile leaders".

The Act on Electromobility and Alternative Fuels of 11 January 2018 (effective 22 February 2018) is aimed at stimulating development of electricity, hydrogen and natural gas powered vehicles. The Act provides incentives for buyers of electric vehicles (EVs), including abolishing the excise tax on electric cars, larger amortisation write-offs for companies, EV parking fee exemptions, and the possibility for EVs to use bus roadways.

According to the European Automobile Manufacturers Association, in the first half of 2018 672 EVs and plug-in hybrids were sold in Poland, a 79.7% increase year-on-year. In comparison, in the first half of 2017 EV sales increased by 35.3% year-on-year, in 2016 by 65.2%, and in the first half of 2015 by 103%. Thus, the legislative changes have not contributed greatly to changing the statistics.

In 2018, further works continued under the government's strategic Electromobility programme, with its two flagship programmes E-bus (electric bus) and electric carlike.

In June 2018, the Ministry of Infrastructure and the National Centre for Research and Development (NCRD) signed a letter of intent, according to which in 2019 a special zone for testing prototypes of autonomous public transport vehicles will be created in the city of Jaworzno. The buses are to be developed as part of NCRD program "Non-Geographical Public Transport".

In January 2019, the Ministry of Energy launched a public consultation on the National Energy and Climate Plan for 2021-2030. The project assumes that by 2030, around 870,000 EVs will be driving on Polish roads, with 2.4 million by 2040.

By Katarzyna Piechocka, Counsel, Warsaw

Slovakia

There have been dynamic technological advancements in the sector of autonomous vehicles since big automotive companies began working on the development of driverless cars. However, these technological changes are not yet reflected in the Slovak legislation. The Slovak legislation, in this area, is currently encompassed by the Act No. 8/2009 Coll. on road traffic as amended. The aforementioned act recognises only cars driven by humans. Accordingly, driverless cars are not regulated at all in Slovakia since there is no legal framework of what could actually be considered as an autonomous or a driverless vehicle.

Given the lack of legal regulation, legal issues may arise in particular if there is an accident on a Slovak road caused by an autonomous vehicle. Since driverless cars are not regulated in Slovakia, it is not clear what duties, respectively rights, users in such cars actually have. In addition, potential liability issues arising from controlling driverless cars are not specified at all. Accordingly, a new legislation to create legal certainty for both users as well as manufacturers would be required in our legal environment to avoid issues with respect to administrative and civil liability in the case of a driverless car accident. Also, permission for using driverless cars from an administrative perspective should be given explicitly and implemented into Slovak administrative law.

Given the current legislative atmosphere in Slovakia as well as a lack of proper initiative measures, aforementioned regulatory changes may be expected after the adoption and implementation of legislative initiatives at the European level since there are not yet such developments on the Slovak national legislative level.

By Radovan Repa and Zuzana Jurickova, both Associates, Bratislava

Spain

Autonomous cars are still unregulated in Spain, so the use of these kinds of cars is forbidden and not authorised for the public in general.

As an exception to this rule, the only regulatory act currently relating to autonomous driving is the Spanish Directorate General of Traffic (DGT) Instruction 15/V-113 of November 13th 2015, which provides the authorisation regime to conduct tests or research trials with automated vehicles which incorporate technology functions associated with automation levels 3, 4 and 5. Notwithstanding the above, there have been some autonomous driving legislative initiatives:

• On October 10th 2017, the Spanish Parliament debated a non-legislative proposal (i.e. a proposal for a text which is not to be binding but shows a political opinion) which showed a huge majority in favour of the automotive cars regulation.
• As the Spanish Parliament Regulation enables the deputies to ask questions to the government, the following question was brought up on October 8th 2018: "What measures are being taken by the Ministry of Economy and Business Affairs to promote the development and use of the autonomous vehicle?" The Government answered on November 19th 2018 explaining that it is developing several programmes to support companies so that they can face the challenges of digitisation and globalisation, including autonomous vehicles and the financing of 4.0 connected technological industry projects and actively participates in forums for the drafting of international regulations.

By Covadonga Maestro, Associate, Madrid

Sweden

In 2018, the Swedish governmental official Commission on autonomous driving on roads released its final report named A Roadmap to Autonomous Driving – Introduction. The report proposes a new legal landscape for the purpose of enabling a future of automated vehicles and autonomous driving and it includes an analysis concerning issues related to e.g. camera surveillance, regulation, and assumptions in relation to criminological liability. It is anticipated that the proposed legal framework, potentially affecting a vast number of legal areas, will be implemented during the next five years. It is, however, likely that the final implementation will be a re-worked proposal and possibly a lighter version of the current proposal. Meanwhile, new regulations were introduced in 2017 allowing trial operations of autonomous vehicles.

Under the Ordinance on Autonomous Vehicle Tests, issued by the Swedish Transport Agency in 2017, fully or partially automated vehicle systems were permitted on public roads in Sweden (subject to specific permits in each case). Several companies are currently testing automated vehicles on public roads, such as automated buses on pre-set virtual railroads. New companies, striving to compete with the traditional trucks and the delivery services as we know them, have submitted applications to the Swedish Transport Agency and are waiting for approval for the launch of new pilot projects. We are excited that this will be the first time the limits of the legal framework from 2017 might be put to the test. Several companies originating in Sweden are at the centre of these new technologies, including Veoneer (previously part of Autoliv), Zenuity (joint venture between Volvo Cars and Autoliv developing driver-assistance technology), Smart Eye (eye-tracking safety systems) and Einride (self-driving pods and trucks).

By Sebastian Westerling, Associate, Stockholm

UK

The Law Commission has started a three-year consultation to examine likely changes to the regulation of automated vehicles, so as to enable their effective deployment in the UK.  This provides a useful indication of where current laws may not be fit for this purpose.  The consultation focuses on three themes: (1) how safety can be assured; (2) having suitable legal mechanisms for attributing civil and criminal liability for when things go wrong; and (3) adapting the road rules for AI decision-making. 

Key concepts being proposed include:

• The need for a 'user-in-charge' – i.e., a driverless car should have a person who is qualified and fit to drive, who can take control of the vehicle in specific circumstances (such as when it reacts to a problem and comes to a stop); and
• An 'automated driving system entity' being required to take legal responsibility for ensuring that an automated driving system is safe.This entity would be subject to regulatory sanctions should a vehicle act in a way which would be considered a criminal offence if done by a human driver.

The consultation aims to provide recommendations for legislative changes by March 2021.

Further, in December 2018 the British Standards Institute published a new cyber-security standard for automated vehicles.  This provides guidance for developers involved in the security of vehicles and intelligent transport systems.

By Jonathan Speed, Partner, and Russell Williamson, Senior Associate, London

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Asia Pacific

Australia

The emergence of a regulatory framework to support autonomous vehicles (AVs) and trials of them in Australia are progressing rapidly with the involvement of various independent, public and private sector bodies.

Regulatory progress

The introduction of AVs in Australia is facilitated by the National Transport Commission (NTC), an independent advisory body which is charged with delivering a nationally consistent regulatory framework that aims to have highly and fully automated vehicles by 2020.

As discussed in Bird & Bird Sydney's publication, 'At a Glance: Autonomous Vehicles', the NTC has combined with Austroads – the peak organisation of Australian transport and traffic agencies – to produce the 'Guidelines for Trials of Automated Vehicles in Australia' in 2017.

Since then, the NTC has advanced the development of AV regulation readiness. Some highlights include:

• November 2017 – Releasing national enforcement guidelines for AVs and an accompanying policy paper, which was approved by transport ministers.
• May 2018 – Developing legislative reform options to change driving laws to support AVs.
• November 2018 – Designing and developing a safety assurance regime for AVs.

  NTC's current projects include:

• May 2019 – Regulating government access to data from AVs and Cooperative Intelligent Transport Systems (C-ITS, i.e. connected vehicles).
• May 2019 – Assisting various jurisdictions in reviewing motor accident injury insurance schemes to identify any eligibility barriers for occupants of an AV, or those involved in a crash with an AV.

Moreover, the Commonwealth's Department of Infrastructure, Regional Development and Cities is leading the national transport technology strategy and ensuring that Australia's AV design rules are on par with international standards.

Trials and investments

Victoria is joining New South Wales and South Australia in undertaking trials of AVs on rural roads. This was announced on 21 January 2019, as the Victorian Government authorised an AU$2.3 million grant to Bosch from the AU$9 million Connected Automated Vehicle (CAV) Trial Grants Program to conduct the state's first on-road trial approved under the new Automated Driving System (ADS) permit scheme.

The Transport for NSW's Smart Innovation Centre is conducting a 2-year trial of AVs in Sydney Olympic Park. This trial, which is of driverless shuttle buses, is assisted by leading industry partners, such as Telstra and IAG, as well as multiple Australian universities.

These developments have attracted significant investment from private sector bodies looking to capitalise on the projected demand for AVs in Australia. For example, French AV technology company EasyMile signed a 3-year research and development agreement with the University of Melbourne in April 2018 to develop autonomous technology and integrated transport solutions. Further, EasyMile has partnered with the Transit Australia Group (TAG) and the South Australian Government to create an AV hub in Adelaide for the purpose of delivering AVs to Australian and Asia Pacific markets. Holden, which is an Australian automobile company owned by General Motors, has committed to spending AU$120 million to boost its design and engineering workforce to develop electric and driverless cars locally for international sale.

By Hamish Fraser, Partner, Sydney

China

Following the "Mid- to Long Term Development Plan of the Automotive Industry" issued jointly by the Ministry of Industry and Information Technology ("MIIT") and National Development and Reform Commission (NDRC) on 6 April 2017, each department involved from the central level has started to take initiatives in order to meet the timeline drawn in the development plan for the Intelligent Connected Vehicle (ICV) i.e. the autonomous driving cars. Take the two major legislative milestones below for example:

Road testing 

On 11 April 2018, the National Rules on ICV Road Testing ("National Rules") have been issued jointly by MIIT, Ministry of Public Security (MPS) and the Ministry of Transportation. These will take effect on 1 May 2018. They adopt the principles and experiences from the trial programmes that have already launched on road testing in Beijing, Shanghai and Chongqinga.

They require that the responsible entity for road testing must have an adequate record in the business of auto or component part production, R&D or be specialised in vehicle testing. It sets certain thresholds for new joiners such as participants from internet companies.  The testing vehicle itself shall be one not yet registered with police authorities, but must already meet all compulsory certification requirements to ensure safety, except for endurance features. Upon the approval, MPS will issue a temporary plate number for the testing vehicle.

In addition, testing vehicles must also record and store real-time related data for at least 90 seconds prior to an accident or malfunction, more than the international practice, which is usually only 30 seconds. However, the National Rules did not take the initiative to allocate the liability in the event of an accident caused by any unforeseeable technical issue, but left it to the judicial interpretation of the relevant product liability laws and traffic accident rules for the court to decide.

Data Protection

One of the goals for road testing is to obtain the real-time data from autonomous trial driving for further processing in the cloud and to interact with other infrastructures. We can say that such data processing and interaction defines the fundamental features of ICV. So the market players are cooperating, yet competing with each other for the integrated data from the different channels.

To collect, process or transfer the data from a specific autonomous drive, the parties which have access to personal data (e.g. from monitoring the driver's behaviour) will need to pay attention to a new national standard when they design their products, namely Information Security Technology – Personal Information Security Specification effective since 1 May 2018 as an implementation to the Cyber Security Law. The new national standards provided clearer guidance on when and how to acquire data, subjects' consents and encrypt their data, as well as what liability each party shall bear.

By Sven-Michael Werner, Partner, and Serena Du, Associate, Shanghai