France Plans on Adopting New Rules for Self-Driving Cars

The Proposed Order

The 2 December 2020 proposed "order on the criminal liability rules applicable to the use of a vehicle with driving delegation and its conditions of use" seeks to provide much needed clarification regarding the legal regime for self-driving cars.

This draft legislation stems from the observation that complete legal uncertainty currently surrounds the sale and use of these vehicles, while they are increasingly being marketed and commercialized around the world.

This disparity between the state of the law and the state of technological advancements concerns several points:

• The definition of what qualifies as an autonomous vehicle;
• The notion of who the "driver" of an autonomous vehicle is;
• Liability issues in the event of an accident involving an autonomous vehicle; and
• The use of autonomous vehicles in commercial transportation activities.

The proposed order addresses three main themes: criminal liability, modalities of use, and automated transport systems.

Chapter 1 of the proposed order addresses the potential criminal liability resulting from the use of autonomous vehicles:

• Provisions of the French Traffic Code relating to the criminal liability for traffic offences will not be applicable to a driver who has delegated the driving functions of the vehicle to an automated system, unless that driver (i) was exercising dynamic control of the vehicle at that time; (ii) did not take back dynamic control when required by regulation; or (iii) did not comply with summons by the police.
• Manufacturers of vehicles with driving delegation features will be criminally liable for offences of involuntary manslaughter or endangerment of the physical integrity of a person, if the automated driving system was exercising dynamic control of the vehicle in accordance with its conditions of use and fault is established.
• Manufacturers will bear the pecuniary liability for traffic fines when the automated driving system was exercising dynamic control, except in limited cases. A new ground for the driver to request an exemption for a traffic fine will be added in the form of submitting a document certifying that an automated driving system was activated at the time of the offence.
• Manufacturers will also have an obligation to guarantee access, for at least one year, to the data of these automated driving systems for public officials in charge of traffic regulation and vehicle owners in the event of a recorded infraction.

Chapter 2 clarifies the modalities of use of autonomous vehicles.

• The decision to activate automated driving systems is made by drivers, who are informed beforehand that these systems are subject to conditions of use defined by manufacturers.
• The draft legislation also proposes to impose on vendors and lessors a duty to inform consumers regarding the conditions of use of autonomous vehicles.

Finally, Chapter 3 covers automated transport systems, including road freight transport. 

• The proposed order sets forth the required security measures to be undertaken by the operators of these systems, such as safety tests and specific accreditations.
• With respect to liability issues, it sets the sanctions incurred in the event of negligence or criminal conduct such as remotely operating the automated driving system under the influence or without the appropriate license.

While this proposed legislation makes a number of important clarifications, notably regarding liability concerns, several gray areas remain.

Although drivers may be exempted from criminal liability when using autonomous vehicles, it is not entirely clear what would constitute an "exercise of dynamic control" within the meaning of the legislation, especially as a full range of automation levels exists in autonomous vehicles, ranging from partially automated to fully automated driving systems. Furthermore, the proposed regulation does not define precisely the terms "vehicle with driving delegation," or "automated driving system." Rather, French legislators stated that the implementation conditions for this new regime will be further specified in a decree.

It may also potentially become an issue that the proposed legislation uses the term "driver" for the user of an autonomous vehicle, when "driver" is defined by the 1968 Vienna Convention on Road Traffic as "anyone who assumes direction of a vehicle," and French law still requires drivers to "remain in a state and position to easily and swiftly execute all manoeuvers" (French Traffic Code, Article R. 412-6 II.). How these prior definitions are to be reconciled with the requirements of the new legislation is unclear.

Much more remains to be sorted out with regard to the legal framework of autonomous vehicles, even as crucial issues such as product liability, the protection of users' personal data, the insurance of these vehicles, and cyber security concerns have not yet been broached.