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Automotive: Go-ahead for Level 3 Lane Keeping System

Automotive: Go-ahead for Level 3 Lane Keeping System

Austria
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Automated Lane Keeping Systems will be harmonised in more than 60 countries in 2021.

The Uniform provisions concerning the approval of vehicles with regard to Automated Lane Keeping Systems, a UN Regulation, were adopted by more than 60 countries at the end of June. The Regulation was introduced by Japan and Germany. It will enter into force in January 2021.

Strict requirements for Automated Lane Keeping Systems for cars, once activated, will be introduced by the UN regulation. The Automated Lane Keeping Systems will be in primary control of the vehicle; but the driver can override such system and can at any moment be requested by the system to intervene. It is the first binding international regulation on level 3 vehicle automation.

Some of the key points of the binding UN Regulation are that i) the driver must be in the driver's seat with his/her seat belt fasted, ii) the driver is available to take over control, iii) no system failure is detected, iv) the Data Storage System for Automated Driving (DSSAD) – so called "black box" – is operational, v) the vehicle is on roads where pedestrians and cyclists are prohibited and which, by design, are equipped with a physical separation that divides the traffic moving in opposite directions. The Automated Lane Keeping System is limited in its current form to a speed of max. 60 km/h. This means that the systems currently could not be activated on highways in Austria but only on specific roads (e.g., in Vienna).

The EU Commission announced its intention to apply the UN Regulation within the EU upon entry into force, but the date is uncertain. It will be interesting to see what the EU Commission makes of the UN Regulation and how each EU member state will react on the regulatory front.

Will it change the way we drive?

The UN Regulation sets out performance-based requirements that must be met by manufacturers before any vehicles can be sold within countries mandating the UN Regulation. Since the EU is planning to adopt the UN Regulation, we expect that EU manufacturers, but also Japanese manufacturers, will implement the UN Regulation before putting any vehicle with Automated Lane Keeping Systems on the market.

In Austria – a country of OEM suppliers rather than OEMs – the Ministry of Traffic, Innovation and Technology issued a national regulation, the so-called Automatisiertes Fahren Verordnung – AutomatFahrV, more than one year ago (see Schoenherr blog entry here). Thus, as per Regulation No 79 of the Economic Commission for Europe of the United Nations (UN/ECE), a parking assistant and a highway assistant with automatic lane keeping, a system that controls the longitudinal guidance of the vehicle, such as acceleration, braking, stopping, distance control as well as the lateral guidance of the vehicle to the lane using the automatic steering function, may be used on the road and built in mass production. However, the driver must be able to take over control at any time. Austria is ahead of the game on the regulatory front, especially in comparison with other EU member states.

Who pays?

Simplified, the vehicle owner is – at least in Austria under the current legislation – liable for any accident involving his/her vehicle for injury/death or damage to property (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz – EKHG) unless the accident was caused by an unavoidable event, not due to a quality defect or failure of performance of a motor vehicle. Fault of the vehicle is not a prerequisite for the strict liability. For example, if a parking assistant incorrectly determines the distance to the next vehicle, it is still the vehicle owner (or rather the insurer) who is liable for the damage – even if the owner behaved correctly. Fault-based liability according to general tort law may also apply to the driver of the vehicle; the distinction between the driver and the owner becomes particularly relevant if the vehicle owner is not the person driving the car at the time of the accident. Situations where fault-based liability for the driver fails, are not too common.

The question is, if and how an OEM is liable for any faults of the vehicle or its programming. Strict liability like Product Liability (Produkthaftungsgesetz – PHG) might apply. The threshold to determine that a product is faulty at the time the product is placed on the market is, however, quite high. Moreover, it is not completely clear yet whether self-developed or even externally developed and purchased software is indeed a product. But opinions are generally affirmative. Good news for OEMs: The requirements for general fault-based liability will in most cases not apply, since fault can rarely be attributed.

Outlook on autonomous driving and liability

OEMs and OEM suppliers must consider potential legal consequences, including potential liability, when developing software for (partially) autonomous cars at any level. In Austria, at least regulatory legislation is comparatively far ahead. An EU effort and any efforts spanning several nations on UN level regarding regulatory legislation, is a welcome imitative; nonetheless, civil liability must not be forgotten and should be simultaneously clarified.

By Christoph Haid, Partner, and Sara Khalil, Attorney at Law, Schoenherr