Background: What is autonomous driving? (SAE J3016 levels and updated taxonomy)

“Autonomous” is a popular term commonly used to describe systems that have the ability to independently decide and exercise control (e.g. in the robotics area). In the context of driving automation, the usage of this term is, however, often inconsistent and considered misleading (the same goes for “driverless” or “self-driving”). Therefore, terminology should rather follow the international standard provided by SAE International (“SAE J3016”) to describe the six-levels of driving automation. The levels range from “No Driving Automation” (Level 0) to “Full Driving Automation” (Level 5). The term “autonomous” is mostly used to refer to either Level 5 or Level 4 (“High Driving Automation”), but certain industry players use it to describe lower levels as well, which highlights the confusion around this topic. Most prominently, Tesla has already faced legal issues in Germany for advertising its system at Level 2 (“Partial Driving Automation”) as “autonomous”, as this was seen as potentially misleading for consumers [2]. SAE International recently updated its standard “Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles”[3] in cooperation with ISO. Key changes to the taxonomy and definitions are:

• A new term “Driving Support Systems” is used for Level 1 and 2, whereas “Automated Driving System” (“ADS”) refers to Level 3 to 5.
• More clarity on the distinction between Level 3 and Level 4. This includes the role of a fallback ready user and the possibility for some Level 3 functions to be designed to automatically perform the fallback to achieve a minimal risk condition as well as clarifying the possibility to alert in-vehicle users at Level 4.
• Addition of two new terms and definitions to make remote support functions clearer: (i) remote assistance is where the ADS would conduct the complete dynamic driving tasks and/or fallback and a remotely located human would be able to provide information to the ADS (i.e. assist the ADS); and (ii) remote driving which is understood to be the real time performance of (parts of) the dynamic driving tasks (which is not driving automation).

International and EU status-quo and current developments

Germany will take a pioneering role with its new law on autonomous driving in an attempt to temporarily close existing legislative gaps until the international and EU legal framework is set. Current important developments at the international and EU level are as follows:

• The Vienna Convention on Road Traffic from 1968 (the “Vienna Convention”), to which Germany is a party, authorises the use of “self-driving” technology under certain conditions, but currently still requires the presence of a human driver who can take control of the vehicle at any time. In September 2020, WP.1, the Global Forum for Road Traffic Safety, voted for an amendment to the Vienna Convention which shall facilitate the responsible use of ADS. A new Article 34bis provides that the driver requirement “is deemed to be satisfied” while the vehicle is using an ADS which complies with (i) domestic technical regulations, and any applicable international legal instrument concerning wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles, and (ii) domestic legislation on operation. After its expected entry into force around March 2022, signatory parties to the Vienna Convention may incorporate the amendment into their domestic legal road traffic framework.
• Three new landmark UN Regulations in the field of connected and automated driving have entered into force in January 2021 and are applicable in the 54 contracting parties to the 1958 Agreement, such as the EU and Germany (UN Regulation No. 155 on Cyber Security and Cyber Security Management Systems, UN Regulation No. 156 on Software Updates and Software Updates Management Systems, and UN Regulation No. 157 on the type approval of Automated Lane Keeping Systems (“ALKS”)[4] which is the first international regulation governing the introduction of SAE Level 3 systems within limited use cases).
• In addition, the EU Commission is currently in the process of developing a new EU Regulation for the type-approval of motor vehicles with regard to their ADS which shall amend Regulation (EU) 2018/858 [5].

German law on autonomous driving

So far, statutory provisions in Germany only allowed regular operation by a driver up to SAE Level 3. The new law now no longer requires a driver and intends to allow so-called “autonomous driving functions” at SAE Level 4 to be used in regular operation in defined operating areas (corresponding to the “operational design domain” or “ODD”). Following signature by the German Federal President and official publication, the new law entered into force on July 28, 2021. Key provisions are as follows:

Autonomous Driving Functions and technical requirements

Vehicles with autonomous driving functions are characterized by the fact that they do not require a person in control of the vehicle. The technical equipment of such vehicles needs to comply with a list of requirements. Inter alia, it needs to be capable to comply with traffic regulations in the defined operating areas, bring the vehicle into a necessary minimum risk state, suggest possible driving manoeuvres and process the data and prevent accidents. More specifications for the construction, condition and equipment of motor vehicles with autonomous driving functions will be laid down in a supplementary ordinance [6].

Technical Supervisor

Instead of a driver, a new role of a “technical supervisor”, a natural person responsible to ensure compliance with road traffic law has been introduced by the new law. For this purpose, the technical supervisor has a variety of obligations, such as assessing transmitted vehicle date in order to be able to activate alternative driving manoeuvres or switch off the ADS as well as communicating with passengers.

Approval procedure

The law on autonomous driving stipulates three steps for the nationwide approval process in contrast to the current patchwork of regional approval procedures:

• Approval of the vehicle with autonomous driving functions (Betriebserlaubnis für ein Kraftfahrzeug mit autonomen Fahrfunktionen) which will be issued by the German Federal Motor Transport Authority (Kraftfahrtbundesamt – “KBA”).
• Approval of the define operating areas (Genehmigung des festgelegten Betriebsbereichs) which is granted by regional bodies responsible under states law.
• Registration (Zulassung), i.e. receiving the license plate.

In addition, the law on autonomous driving will extend existing testing opportunities for autonomous driving functions and there will be the possibility to approve vehicles with so-called “sleeping” autonomous driving functions (i.e. the functions cannot influence the vehicle when deactivated) which can be activated at a later stage by way a subsequent approval.

Data privacy

The law further describes several data protections measures and obligations. Inter alia, the owner of a vehicle with autonomous driving functions will be obligated to store and, upon request, transmit certain vehicle data (e.g. vehicle identification number, position data, environmental conditions and speed) in the case of specific safety-relevant occasions (e.g. in the event of interventions by the technical supervisor, conflict scenarios or malfunctions during operation) to the KBA and the competent federal or state authorities. Data privacy has been one of the most controversial topics during the legislative procedure, which led to the lawmakers being requested to draft a mobility data law to define the framework for processing non-personal data generated in vehicles (in particular clarifying rights of use of this data by citizens and possible access needs of private providers and government bodies).

Further obligations and liability

In addition to the aforementioned new role of a technical supervisor and responsibilities, other parties involved will need to fulfil additional obligations. The manufacturer of a vehicle with autonomous driving functions is, for example, responsible for aspects of cybersecurity (e.g. provision of proof that the electrical and electronic architecture of the vehicles is protected against attaches), risk assessment and trainings for persons involved in operation. Also, an enhanced duty of care for vehicle owners is established.

The liability of the vehicle owner under the current road traffic regime will generally not change. However, should the vehicle owner decide to delegate the tasks for technical supervision, he/she will be responsible for any fault of the person entrusted with those tasks. Existing statutory provisions dealing with driver liability will, of course, not be applicable. Liability questions relating to the manufacturer may become an challenging topic in the future.

Updates to the German passenger transportation framework

The law on autonomous driving does not contain any restrictions on the scope of application. Nevertheless, it is clearly focused on commercial operational scenarios such as shuttle transports, people movers and Hub2Hub transport. The growth of such new mobility services, particularly in the area of digital intermediation of rides and ridesharing services, is also encouraged by the revision of the German Passenger Transport Act [7], which was adopted in March 2021 and will enter into force on August 01, 2021.

Notably, two new categories of transport have been added by this update: (i) regular on-demand transportation services (Linienbedarfsverkehr), and (ii) bundled on demand-transportation services (gebündelter Bedarfsverkehr). The latter category is intended to apply to ride pooling services (i.e. passengers are not required to rent the whole vehicle) which will thus finally get a specific legal basis for authorization and may become a central component of the future passenger transport in Germany. Upon execution of an order, bundled on-demand transportation services are obliged to return to their respective place of business (Betriebssitz), unless the drivers have received new transport orders before or during the journey. This topic has been highly controversial and there has been a lot of lobbying against it from the taxi industry in the last few years. As a result, rental cars will, however, still need to return and are not allowed to pick up passengers from the street as they are not subject to the exception implemented for bundled on-demand transportation services.

On the basis of the updated passenger transportation framework, static (e.g. timetables, fares) and dynamic data (e.g. disruptions, delays, estimated departure and arrival times) will have to be made available in 2022. Specific details of data collection will be regulated in an ordinance on mobility data, which is still to be finalized. The draft ordinance is already being criticized as being contrary to the constitution.

Next steps

The newest legal developments in Germany not only go hand in hand with the rapidly advancing technical and technological progress in the field of automated driving, but also mirror the existing competition amongst several countries (France and the UK, for example, are also very advanced in this area) to create a legal basis for bringing this progress to domestic roads and combining them with new mobility services. For the moment, it seems that Germany has "won" this race. However, the law on autonomous driving in particular is accompanied by certain legal concerns and ambiguities. In addition to new liability issues that may arise, in particular ethical, cyber-security and data privacy questions will have to be addressed and handled. The EU is already dealing with potential vulnerabilities of AI in autonomous vehicles within the draft AI-Regulation. Further questions exist with regard to the handling of existing type approvals (e.g. for retro-fitting purposes) as well as the role of ADS manufacturers.

References:

[1] BGBl. 2021, II No. 48, 3108 et seq,, Link BT-Drs. 19/29875, Link BT-Drs. 19/29875.

[2] Ayad/Schuster: Germany only, article regarding decision by LG München I, 17 July 2020, 33 O 14041/19.

[3] J3016C: Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles - SAE International (J3015_202104).

[4] Link UN Reg 155, Link UN Reg 156, Link UN Reg 157.

[5] Link EU Draft Regulation, Link EU Draft Regulation.

[6] Draft Ordinance implementing the Act amending the Road Traffic Act and the Compulsory Insurance Act , Entwurf einer Verordnung zur Durchführung des Gesetzes zur Änderung des Straßenverkehrsgesetzes und des Pflichtversicherungsgesetzes (German).

[7] Law on the Modernization of the Passenger Transport Act - Gesetz zur Modernisierung des Personenbeförderungsrechts.