Achtung, bitte!
Germany’s half- hearted draft
law on automated vehicles
Dr. Jan-Erik Schirmer
liable parties
Introduction
Autonomous car – Who is in the spotlight?
Germany’s half-hearted draft law
on automated vehicles - Schirmer
driver
vehicle holder
manufacturer
insurance
the vehicle
itself?
Introduction
“Regular” car crash: Rules of liability
driver
holder
fault
liability
strict
liability
• Sec. 18 StVG
• Sec. 7 StVG
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... at a glance
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Amendment to the existing German Road Traffic Act (StVG)
Specific regulations for automated vehicles (Sec. 1A)
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2 main areas of regulation:
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“which can be driven automatically by in-vehicle technology lengthways
and crossways for a certain period of time and in certain situations” and
“which can identify and articulate the need for the vehicle driver to take
over the driving of the vehicle”
No regulation for fully autonomous vehicles
(Driver‘s)Liability
Collection and processing of car-data by event data recorders
Aim:
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Provide/increase legal certainty
encourage automated driving
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in action
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in detail: A new standard of due care?
Sec. 1B
The [ordinary] obligations of a vehicle driver (...) shall apply in the case of the operation
of a vehicle with automated driving functions, provided that the vehicle driver is
allowed to turn away from the traffic and the vehicle control during the
automated driving period as far as the vehicle driver remains so observant
(wahrnehmungsbereit) that he can
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take over the vehicle control at the request of the automated system
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and react appropriately to apparent technical malfunctions and, if necessary,
can take over the vehicle control again.
Consequences:
• The driver does not act negligently per se just because he is “turning away” from
actively controlling the vehicle
• No obligation to monitor the system constantly, but driver must be alert
enough to intervene and take over control if requested or if there is a technical
malfunction
• In case of an accident due to an error of the automated system, the driver is
not liable, even if the accident could have been prevented by monitoring the
system constantly.
• Nothing changes for the vehicle holder: He remains liable for any caused damage
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in detail: A new standard of due care?
But: Many open questions!
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First “but”: When does the driver remain observant enough?
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No specification, just two examples: sleeping (no), using the entertainment system (yes)
Reading newspaper/surfing on the internet/eating/playing with the kids?
Hands on wheel at all times?
“Turn away” = possible to face towards the back of the car?
Second “but”: Does the driver act negligently per se just because he is not
observant enough?
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Scenario: Sleeping driver, no take over request from the system or recognisable technical
malfunction, just an accident due to an error of the automated system – liability?
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in detail: Easing the burden of proof?
Sec. 63A
Vehicles with automated driving functions according to Sec. 1A shall record (...) during
operation whether the vehicle is being controlled by the driver or by the automated
driving system. If the driver is requested by the automated system to take over the
vehicle control or if a technical malfunction occurs in the automated system, a recording
according to sentence 1 shall take place also (driving function data).
Explanatory Memorandum:
The recording of the driving function ensures that the driver is not able to use regulation
in Sec. 1A as a pretext for refusing his liability. At the same time, the driver can even
positively prove that he was not at fault.
Consequences:
• In a "regular“ car accident the driver must prove that he was operating the vehicle
properly in order to refute the presumption of fault
• Apparently, when driving an automated vehicle, it is enough for the driver to argue
that the automated driving systems had control by showing the driving function data
• Does that mean that the damaged party now has the burden to prove that the driving
function data was not recorded properly or that the driver did not remain observant
enough?
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in detail: No maximum amounts
Sec. 12B. (revised)
Sections 12 and 12a shall not be applied if damage is caused in the course of
the operation of an armoured tracked vehicle or by an error of an
automated driving function in the course of the operation of a vehicle with
automated driving functions according to section 1A.
Consequences:
• Automated vehicles are considered to be as dangerous as tanks
• No real incentive for the use of automated vehicles
Germany’s half-hearted draft law
on automated vehicles - Schirmer
The draft law on automated vehicles
... in review: A half-hearted approach
Pros:
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(Little) increase of legal certainty:
Turning away from controlling the vehicle is not negligent per se
Obligatory record of driving function data could make it easier to sort out
responsibilities
Cons:
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No regulation for autonomous vehicles:
Legislation continues to lag behind instead of leading from the front
Many open questions and in need for interpretation – reaching a solid level
of legal certainty will take time!
Extending the liability of the vehicle holder will most likely not encourage
the use of automated vehicles
Germany’s half-hearted draft law
on automated vehicles - Schirmer