The development of autonomous vehicles is certainly the most challenging legal development of the moment. An autonomous car is a vehicle equipped with intelligent onboard systems that allow it to limit driving tasks under certain conditions and, in terms of development, enable the car to be used on public highways in automatic mode without the driver being involved.
The reasons for developing these vehicles are manifold: improving road safety, making traffic more fluid, promoting eco-driving and making mobility accessible to all. However, many issues remain to be resolved, from both a technical and legislative standpoint.
In addition, for French law to be perfectly suited for completely autonomous driving, new legislation will be needed in light of the Vienna Convention on Road Traffic of 8 November 1968, as recently amended in 2016 to allow for driving with automated features. Discussions are ongoing in this respect to provide for a tailored framework that will fully allow autonomous vehicles to operate (and hence to improve road safety which is a major objective of the Convention).
However, on 3 August 2016, an Order was issued authorising manufacturers to conduct tests with autonomous vehicles on French roads. This was a first step towards the arrival of autonomous vehicles on the French market. Following that, a Decree was issued in March 2018 to set out the authorisation regime for the testing of automated driving vehicles on public roads. The authorisation regime is made of two-levels of authorisation, one for the testing, which can cover one or several vehicles involved in the testing and a specific registration of each vehicle involved in the testing. The testing must relate to at least (i) technical tests and development, (ii) evaluation of the performance in situation for the use for which the vehicle with driving automation is intended, or (iii) public demonstration, notably during events. Authorisations will be granted for maximum two years but can be renewed. This testing framework is not adapted to SAE Level 5, as the presence of a driver who can operate the vehicle and take control of the vehicle at any time is required. However, the driver can be outside the vehicle.
The Law on the growth and transformation of companies adopted in April 2019 provides further details on this experimental regime. In particular it states that the driver must be able to neutralise or deactivate the automated driving system at any time. The authorisation holder must provide all information to prove that when a driver is outside the vehicle, he or she will be ready to take control over the vehicle at all times and be able to do so.
The automotive industry is also challenged by the discrepancy between French data protection law and the fast development of ‘connected’ vehicles. Connected vehicles, through various onboard intelligent systems such as geolocation, camera radar, digital keys, etc, may lead to the recording and transfer of personal data of drivers but also of surrounding vehicles and pedestrians.
One of the key principles of French data protection law is transparency. Data subjects (ie, drivers) must be informed by the data controller (ie, car manufacturer) of how their personal data will be used. Therefore, the French Data Protection Authority published in October 2017 guidelines on the use of personal data collected by connected vehicles through vehicles’ sensors, telematics devices or mobile applications. Such guidelines provide guidance to OEMs on how to integrate the data protection by design and by default requirements into the production pipeline.
France has not (yet) implemented a specific liability regime that would be applicable to series deployment of autonomous vehicles in France. As a general matter of principle, civil liability is incurred under French law if (i) a wrongdoing or negligence (including putting on the market or selling a product deemed defective or unsafe), (ii) a damage and (iii) causation between the two are established. This being said, a Bill is currently being examined by the French parliament that will enable the government to adopt rules within one year to define the liability regime applicable to autonomous driving so that the current liability rules do not hinder innovation. The current wording of the Bill provides that the government will be enabled to regulate both ‘partially or fully’ autonomous vehicles (therefore regardless of any specific autonomy level and whether they are driverless or not). No particular guidelines are given as to the content of these upcoming liability rules that the government will enact. In particular, it has not been determined whether a completely new and special regime of liability will be adopted or whether current statutory provisions will be merely amended to cover situations involving autonomous vehicles.
One of the key questions will be whether Law No. 85-677 of 5 July 1985 improving the situation of victims of traffic accidents will need to be amended because this law imposes a specific regime of liability for drivers and vehicle custodians that is designed to ensure the compensation of victims of traffic accidents. Indeed, even if this law does not directly impact product liability, it could impact the liability of the car manufacturers or software developers if they were to be considered drivers or custodians of the vehicles in case of an accident involving an autonomous vehicle. The 1985 Law notably does not precisely define who must be considered the driver of the vehicle. Also, this law imposes that any person who can be held liable for damages suffered resulting from a traffic accident must be insured accordingly. It is yet to be determined how such obligation could transpose to L4 automated vehicles.
With regards to product liability stricto sensu, the main question will be to assess, in the case of an accident, in which equipment it originated and therefore which operator or person should be held liable (car manufacturer, software developer, other components suppliers, custodians, authorities who must put in place infrastructures for the autonomous vehicle to operate safely). In this respect data recorders will have a significant impact to determine the origins of the accident involving automated vehicles. This question impacts all potential defendants and their potential cross-claims against each other depending on the nature of the issue. French courts will likely request potential defendants (or data holders) to provide this data after an accident.
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