The following commentary was prepared by Stefan Engels, a German attorney and automotive industry consultant with previous senior executive experience at dbh logistics IT AG, Intermap Technologies, PTV AG, Motorola Solutions, Deutsche Telekom and DaimlerChrysler Services. (I edited Stefan's commentary and chose the picture - at left.):
Hardly a day passes when one cannot find a high profile commentary or news bulletin about autonomous or semi-autonomous vehicles. Next to the usual suspects in the automotive industry working on such technologies, there is a remarkable number of new players trying to penetrate this field. These newcomers obviously see market and technical opportunities within autonomous driving, but the law may be a bigger barrier than technology.
There are several unresolved legal questions, especially here in Germany and in Europe overall, which leave announcements like “XYZ cars/trucks will drive autonomously by 2020” sounding a little hollow. I am not opposed to the vision of self-driving cars, but the legal issues must be resolved.
Major recent change of the Vienna Convention on Road Traffic in 2014
A first step towards realizing this vision was made back on April 17 this year, when the good old international treaty called “Vienna Convention on Road Traffic” saw dramatic change in its Article 8 para. 1. Pushed mainly by representatives from Germany, Italy and France, the U.N. Working Party on Road Traffic Safety agreed to let drivers take their hands off the wheel of self-driving cars, as long as the system "can be overridden or switched off by the driver." In a nutshell: a driver must be present and able to take over the wheel at any time.
Years before, it had been both mandatory as well as common sense of the 1968 Convention on Road Traffic, that: "Every driver shall at all times be able to control his vehicle or to guide his animals." – which pushed the sophisticated dream of “without a driver having to touch the steering wheel” in Germany far out - as the German driving license regulations (FeV) refers to it.
The legal framework ruling operation & permitting of vehicles in Germany
There are a few regulations, mainly stipulated in the national German Road Vehicle (Registration) Regulations (StVG, StVZO and StVO), which still require active measures by any vehicle driver, regardless if the car is fully automated or not. So nearby scenarios in the big picture with a vehicle commuting driverless, e.g. to a parking space or as a pick-up service, require a change of these regulations, in order to conform to these laws.
For example, according to Sect. 31b StVZO, each vehicle driver has to hand out on request e.g. the breakdown triangle, the reflective vest or the first-aid kit. It is the literal sense that a driverless car cannot “hand out” anything at all. On the other hand, violators can be prosecuted with a fine of up to 2,000 €, according to Sect. 69a, para. 5, No. 4b in conjunction with Sect. 24 StVG.
A similar problem occurs when a vehicle breaks down: according to Sect. 15 StVO, the vehicle driver has then to arrange a breakdown triangle to warn oncoming traffic from behind, roughly in a total distance of 320ft. Minor offences can be punished here with a fine, but in the worst case, this can be sentenced as a criminal offence with prison up to 5 years (Sect. 315c, para. 1, No. 2g StGB [German Criminal Code]). Finally, absconding after a traffic accident (Sect. 142 StGB) showcases, that our legal system – not only in Germany – also takes a physical vehicle driver for granted!
Apart from that, there are numerous mainly technical regulations in the national German Road Vehicle Registration Regulation (StVZO), effecting the remaining general operating license of a vehicle, such as the grant of a view field, needed resolving power of camera systems, brake and steering mechanism – see e.g. Sect. 19 StVZO.
One may argue now, if you take Adaptive Cruise Control, Lane Departure Warning, a good automatic gearbox, multiple cameras and just add some (physical) sensors, you have an autonomous car that is quantifiably better than the average driver. Even though this may be the case, it is in my view the overall combined system that needs to perform smoothly and operate 100% error-free.
A well-known German OEM, for example, has driven hundreds of miles with its prototype. At a pedestrian crossing somewhere downtown, a polite old lady wanted to give way to this car. While the system detected an obstacle, identified as a pedestrian at the side of the road, the car stopped, to give way to the lady. No rule in the system had been programmed for “politeness,” and to me this is one of the more “innocent” errors, that can occur.
Next to a fault-based liability, there also exists liability regardless of fault in our national German Road Vehicle Regulations. According to Sect. 7 StVG, the keeper of a car is always held liable for any harm, caused by his vehicle: for injury to persons up to 5M€ max., for property damage up to 1M€ max., see Sect. 12 para. 1 No.1 and 2 StVG.
This is based on the idea, that each keeper of the car is responsible for the potentially increased risk, emanating from operating his or her vehicle. Therefore, each keeper of the car is obligated in Germany, to effect an insurance (see Sect. 1 PflVG) for (1) himself; (2) [a potentially non-identical] owner of the car as well as (3) the driver. In this context, questions will definitely arise regarding insurance protection, if the car is driverless, as to what exactly can and will be covered.
Next to this – as you have probably expected – also the producer can be held liable, if due to a product defect a person is injured or property damaged, see Sect. 1 para. 1 ProdHaftG. Again, this liability is regardless of an actual fault. In Germany, we differentiate three main “fault” case groups: (1) construction; (2) production and (3) instruction. Especially the latter one – instruction faults – is well-known, when it comes to more complex driver assistance systems and is the main reason why acoustical and/or visual warning signals have to be implemented here – next to the telephone-book-thick instruction manuals just for ADAS applications.
Outlook for Germany & the EU
Apart from Germany's Road Vehicle Regulations and product liabilities, data privacy protection will be one key area, that also needs to be covered. Hackers taking command of a car is not the sole concern. Which privacy law applies, if a German headquartered OEM, manufacturing a vehicle in a plant based in the US, sells it to a customer, who drives it then in Japan?
But with roughly 80% of all fatalities derived from human failure, I think we should seize this golden opportunity now and position technical demands for camera systems as a higher priority than any existing human reference values in our laws, in order to improve the whole, intrinsic system and lift it up to the next level.
Given the fact that some of the above mentioned laws are originally EU-directives, which have been implemented by all EU member states, it is not solely a German challenge to overcome.
The German car lobby with support elsewhere in the EU was able to alter the Vienna Convention on Road Traffic to allow hands to be removed from the wheel. Mercedes was clearly mindful of the old rules when it launched the latest S Class requiring the driver’s hands to be on the wheel. (Of course, some clever drivers have found a workaround with a can tied to the steering wheel: http://tinyurl.com/obglrqd)
Hopefully progress in the future will not depend on workarounds. With further lobbying the Gordian Knot of legal limitations will be overcome enabling a driverless future to unfold. But it may be difficult for Germans, in particular, to accept that computers drive better than Germans.