New German draft law on autonomous driving

On 10 February 2021, the German Federal Government adopted a draft law on autonomous driving. This is intended to create a suitable legal framework by supplementing existing regulations of road traffic law in order to initiate the regular operation of autonomous, driverless vehicles in Germany. The further legislative process should also give future players in the field of autonomous driving the opportunity to contribute their own ideas. Planned is that the law will come into force in mid-2021 and will provide the legal framework until European and/or international laws supersede it.

I. Reason

The development dynamics in the field of automated, autonomous and connected driving remain high. In order to be able to exploit the potential of these technologies and to enable society and economy to participate, it is necessary to implement further steps to introduce corresponding systems into regular operation. Therefore, it is necessary to go beyond the testing of autonomous, driverless vehicles already possible in public road traffic and to initiate regular operation. The aim of the draft law is the rapid establishment of innovative technology, functions and services in Germany and to make the mobility of the future more versatile, safer, more environmentally friendly and more user-oriented. This will generate a considerable amount of data, which holds immense potential but must also be adequately protected.

II. Status Quo

In 2017, German lawmakers passed the first law on autonomous driving. However, this law does not provide for an exception to the basic legal assumption of a fully responsible vehicle driver. The driver may not be replaced by the system while driving and can only relinquish vehicle control in certain situations -- highly or fully automated vehicle operation (from level 4 of autonomous driving) is therefore not legally possible.

III. New Draft Law

When the law comes into force as planned, Germany would become the worldwide first country to allow driverless vehicles in regular operation. The draft law on autonomous driving is intended to create a legal framework that allows highly automated vehicles (level 4 of autonomous driving) to be used in regular operation. This operation is planned for the whole of Germany in defined operating areas on public roads for a number of operational scenarios. The operational scenarios include

• shuttle transports,
• automatic passenger transport systems for short distances ("people movers")
• driverless connections between logistics centres (Hub2Hub transport)
• demand-oriented transport services at off-peak times in rural areas, and
• dual-mode vehicles for example in "automated valet parking" (driver can exit and let vehicle drive itself into garage).

1. Technical Supervisor

According to the draft law, vehicles with an autonomous driving function no longer require a person to drive the vehicle during operation. However, in order to ensure compliance with current international regulations, a responsible person is required. This function is filled by the newly introduced "technical supervisor". The technical supervisor is a natural person, who is responsible for ensuring that the obligations under road traffic law are complied with at all times, even if permanent monitoring of the driving operation is not required. Responsibilities are in particular:

• Activation of alternative driving manoeuvres
• Assessment of transmitted data of vehicle and taking the necessary measures for traffic safety including immediate deactivation of the autonomous driving function in case of technical problems.
• Contacting passengers and taking necessary measures for road safety when vehicle is placed in minimum risk state - meaning greatest possible road safety.

2. Autonomous Driving Function

In order for the vehicle to receive an operating permit, a number of requirements with regard to the autonomous driving function must be met. These include in particular:

• Accomplish the driving task independently within the respective defined operating range in compliance with traffic regulations.
• System of accident prevention and sufficiently secure wireless connection at all times, especially with the technical supervisor. If the connection is lost, the vehicle shall automatically return to minimum risk state.
• Independent transfer to minimum risk state, if the ride continuation is only possible through a violation of road traffic law, a system limit is reached or a technical malfunction occurs.
• Independent delivery of data and, in certain cases, independent suggestions of possible driving manoeuvres to the technical supervisor.
• Reviewing a driving manoeuvre instructed by the technical supervisor and, if necessary, not carrying it out, if this would result in a danger to other road users.
• Notification to the technical supervisor about the need to activate an alternative driving manoeuvre or deactivate the vehicle as well as in case of impairment.
• Possibility of retroactively activating already installed autonomous driving functions.

3. Manufacturer's Obligations

Besides a supplementing legal ordinance of the German Federal Ministry of Transport and Digital Infrastructure (Bundesministerium für Verkehr und digitale Infrastruktur, "BMVI"), the draft law itself provides for the following obligations in particular:

• Proof that the electronic and electrical architecture of the vehicle and the electronic and electrical architecture connected to the vehicle are secured against attacks.
• Carrying out a risk assessment and providing evidence to the German Federal Motor Transport Authority (Kraftfahrt-Bundesamt, "KBA").
• Proof of sufficient and secure wireless connection.
• Binding declaration on the requirements of the autonomous vehicle, both in the system description to KBA and in the operating manual.
• Training offers for persons involved in the operation of the autonomous vehicle.
• Obligation to notify the competent state authority and KBA in the event of manipulations.

4. Data Processing

Compared to previous draft laws on autonomous driving, the requirements for data processing have been significantly revised. Regulated directly in the law, the vehicle owner is obligated to store the following data when operating the vehicle:

• Vehicle identification number
• Position data and environmental and weather conditions
• Number and times of use including activation and deactivation of the autonomous driving function as well as number and times of release of alternative driving manoeuvres
• System monitoring data including software status data and networking parameters such as transmission latency and available bandwidth
• Name of activated and deactivated passive and active security systems, data on status of security systems and instance that triggered security system
• Speed and vehicle acceleration in longitudinal and transverse direction
• Status of the lighting equipment and power supply of vehicle
• Commands and information sent externally to vehicle

The aforementioned has to be stored in the following events:

• Intervention by the technical supervisor
• Conflict scenarios, especially in accidents and near-accident scenarios
• Failure to change lanes or swerve as planned
• Disruptions in operating process

In addition, the vehicle owner is obligated to provide KBA and the competent state authorities with the stored data as well as the first name and surname of the person deployed as technical supervisor at their request, insofar as this is necessary for monitoring the safe operation of the vehicle.

5. Data Protection

As of now, the following data protection measures are described in the draft law:

• Obligation of manufacturer to inform the vehicle owner precisely, clearly and in plain language about the privacy settings and the processing of data when driving autonomously. Relevant software of the vehicle must enable the vehicle owner to make appropriate settings.
• Authorisation of KBA and competent state authorities to collect, store and use data to ensure effective control of roadworthiness and safety.
• As far as non-personal data is concerned, data processing for public benefit purposes, namely scientific research in the fields of digitalisation, automation and connectivity as well as road traffic accident research shall be made possible.
• If vehicle owner uses employees as technical supervisors in accordance with Sec. 26 of the Federal Data Protection Act, KBA must delete related data immediately as soon as it is no longer required, at the latest after three years have elapsed following the cessation of operation of the vehicle in question.

6. Accident Prevention

Since the autonomously operating vehicle must have a system of accident prevention, special specifications are made on how damage avoidance and reduction can be achieved in an ethically justifiable manner. Based on essential findings of the German Ethics Committee on Automated and Autonomous Driving, the following is provided for in particular:

• In the event of unavoidable alternative harm to different legal interests, the significance of the legal interests must be taken into account and the protection of human life must have highest priority.
• In the case of unavoidable alternative risk to human life, no further weighting on the basis of personal characteristics, such as age, gender, physical or mental constitution is allowed.
• "Dilemmatic situations" in particular are covered by an abstract-general rule in order to define framework specifications for programming parameters.

7. Testing of Autonomous Driving Functions

In addition, extended possibilities for testing of autonomous driving functions at federal level are created if

• corresponding permit has been issued by KBA, and
• vehicle is registered and operated exclusively for testing and is permanently monitored during operation.

The intention is to create legal certainty for manufacturers in the case of testing across federal states. It is unclear, however, whether testing will continue to be possible on the basis of the previously customary procedure under state law.

8. Supplementary Legal Ordinance

Especially technical details are to be regulated by the BMVI in a legal ordinance supplementing the draft law. This includes, among other:

• Technical requirements and procedures for granting an operating permit including requirements for the assessment of the vehicle by KBA.
• Obligations of the manufacturer with regard to data storage, security of the information technology used and the functional safety of the vehicle.
• Manufacturer shall assess of the autonomous driving function in a safety concept.
• Technical details of the in-vehicle storage of data generated during operation, in particular on the exact times of data storage, the parameters of the data categories and the data formats.
• Data storage and transmission must meet the requirements for security in the field of information technology. In particular, the data must be protected against manipulation and misuse in accordance with the state of the art. The manufacturer must prove the security concept and its effectiveness as part of the certification.
• Market surveillance including requirements for the participation of further authorities in the assessment of the information technology security of vehicles and vehicle parts as well as the regulation of obligations to cooperate for manufacturers and vehicle owners.

IV. Concerns & Criticism

The draft law is facing a variety of concerns and criticism, especially from associations. These relate in particular to the need for a permanent wireless connection of the vehicle, data usage and data protection.

1. Permanent Wireless Connection

Autonomous vehicles must always have sufficient wireless connection with the technical supervisor. In the event of a loss of or unauthorised access to the wireless connection, the vehicle should automatically set itself to minimum risk state and would no longer be able to continue driving or be activated remotely.

• According to the German Association for Information Technology, Telecommunications and New Media (Bundesverband Informationswirtschaft, Telekommunikation und neue Medien, "Bitkom"), such a regulation is neither practicable nor proportionate and would create additional risks and disrupt the flow of traffic. Especially since wireless connectivity is not a technical necessity for autonomous operation.
• According to the German Association of the Automotive Industry (Verband der Automobilindustrie, "VDA"), it is also not appropriate to transfer the responsibility for the wireless connection solely to the manufacturer. Two elements - the mobile connectivity and the technical equipment of the vehicle - are treated collectively, although two different actors are responsible for them (mobile carrier and manufacturer).

2. Data Use

As outlined above, in principle only official authorities have access to data stored in the autonomous vehicle.

• VDA considers data access to be too restrictive and demands that manufacturers - as key innovation drivers - should be given explicit access rights for purposes such as repair support, product improvement and development, warranty as well as product liability. In this context, a corresponding interface for data transmission is addressed.
• The draft law does not regulate the use of data in connection with machine learning to improve algorithms. In this respect, it is assumed that algorithms generated with machine learning can also be used in autonomous vehicles. However, BMVI is of the opinion that programme code generated in this way is only used statically and that no software is uploaded online when the vehicle is in operation. Accordingly, any change to the system is, according to the opinion of BMVI, to be made via a software update approved by KBA.

3. Data Protection

Due to the far-reaching rules on data processing to the benefit of KBA and state authorities, the absence of supplementing rules on data protection is viewed critically. The Federal Ministry of Justice and Consumer Protection demands that the power of control over the data must lie solely with the vehicle owner. Manufacturers should allow vehicle owners to store data themselves and may not stipulate a waiver of the data sovereignty either in general terms and conditions or in sales contracts.

V. "Mobility" data space

Irrespective of the draft law on autonomous driving, a "Mobility" data space, as part of the new data strategy by the German Federal Government , is planned to provide access to mobility data by 1 October 2021. The "Mobility" data space is linked to the idea that generated mobility data, especially if its non-personal or anonymised data, should be available to as many players in the mobility sector as possible. The aim is to lay the foundation for the mobility transformation, for new services in the automotive aftermarket, and for further improving road safety with automated and connected mobility. The "Mobility" data space aims at following objectives in particular:

• Ensure data sovereignty through common rules for trustworthy data transactions.
• Reduce economic and technical dependence on digital platforms of large private providers.
• Implement the basis for an intermodal mobility system across all transport modes without obligation to share data.
• Participants can determine and control who can use their data and under what conditions and always keep the data on their servers.

Members of the steering committee of the "Mobility" data space are various players from the mobility industry such as BMW Group, Lufthansa, Bosch and Deutsche Bahn.

VI. Outlook

With the published draft law, the German Federal Government is adopting a central component for bringing autonomous driving into practice and enabling opportunities for use in various mobility sectors. Based on the potential that lies in Germany in terms of research, development and manufacturing, the mobility of the future can thus be made more versatile, safer and more environmentally friendly.

It should also be noted that the law on autonomous driving is an interim solution until harmonised regulations are in place at European and international level. Still, a German law could serve as a basis for a European law and thus enable an accelerated legislative process. At the same time, it would presumably be advantageous for market players established in Germany, if the "spirit" of a German law were adapted at EU level. Until then, the BMVI will evaluate the application of the provisions of the draft law after the end of 2023, in particular with regard to the effects on the development of autonomous driving and compatibility with data protection regulations.