Austria

1. Is the testing of AVs (SAE Levels 3-5) permitted on public roads in your jurisdiction?

Yes, in Austria testing is allowed for use in the following cases:

1. Autonomous minibuses for up to 20 km/h: SAE Level 2

Car manufacturers, system developers, research institutions, traffic companies and public transport operators are allowed to test autonomous (fully automated) minibuses (classes M1-M3) on predefined public testing roads. Prior to testing, the vehicle must have run at least 1,000 km. The vehicle will drive autonomously, but the test driver must by ready to regain control in case of a critical situation.

2. Autopilot on highways and motorways with autonomous change of lanes: SAE Level 2

Car manufacturers, system developers and research institutions are allowed to test a vehicle (classes M1, M2, M3, N1, N2 and N3) that masters autonomous change of lanes on public roads. Prior to testing, the vehicle must have run at least 10,000 km. Autonomous change of lanes may only be activated once the driver has entered the motorway or freeway. The driver has to regain control before she leaves the motorway or freeway. The test driver must by ready to regain control in case of a critical situation.

3. Autonomous military vehicles: SAE Level 2

The Federal Ministry of Defense is allowed to test autonomous (fully automated) military vehicles (classes N1, N2, N3, T1, T2, T3, T4 and T5) on public roads. Prior to testing, the vehicle must have run at least 300 km. The test driver must by ready to regain control in case of critical situations. Purpose of testing should be: (i) autonomous driving, (ii) tele-operated driving, (iii) driving in convoy, (iv) steering equipment operated by external force.

General requirements for all testing situations:

  • Insurance coverage
  • The Federal Minister for Transport, Innovation and Technology has received detailed information about the testing conditions and details
  • The Federal Minister for Transport, Innovation and Technology has issued a certificate that the system has been tested sufficiently before testing.
  • The street operator must be informed about the testing scenario and the time of the test.

2. Are consumers permitted to use AVs (SAE Levels 3-5) on public roads in your jurisdiction?

Yes, consumers may use retail cars with the following features:

1. Autonomous parking

Consumers can use cars (classes M1 and N1) on any public road that employ autonomous (fully automated) parking at a maximum speed of 10 km/h. The driver is not obliged to hold the steering wheel or even be inside the care during the automated parking process. He must remain in close proximity to monitor the parking process. In the case of a critical situation, he must trigger the emergency system.

2. Assistance system for autonomously keeping in the lane on highways and freeways

Consumers can use cars (classes M1, M2, M3, N1, N2 and N3) that master autonomously keeping in the lane on highways and freeways. The driver must regain control before he leaves the motorway or freeway. The test driver must by ready to regain control in the case of a critical situation and the car must be equipped with an emergency system that deactivates the system without delay.

3. Who has liability for damages caused by a car in automated driving mode?

In Austria, liability for damages caused by autonomously or semi-autonomously driving cars follows the general rules of liability for damages. Austrian law distinguishes between liability for damages due to negligent (or intentional) behaviour and strict liability of the car operator or the car manufacturer per product liability law.

1. Liability of the driver for damages due to negligent (or intentional) behaviour while driving

If the driver does not follow the general rules of Austrian traffic laws or the specific laws governing his duties when driving a (semi-) autonomous car and causes an accident, he will be personally liable for these damages. Usually, insurance will fully cover the damages if other road users or pedestrians are harmed.

If at some point in the future, the law will not require the driver’s attention (“eyes off” or “mind off”), there will be little to no room for driver liability due to negligent behaviour.  

2. Liability of the car operator

Austrian law provides for strict liability of the operator of any car, autonomous or not. The operator will be liable for any damages caused by the operation of the car, unless the car has been used without the operator’s consent. The operator remains jointly and severally liable if he failed to apply due care in preventing this use without his consent (e.g. a mother does not lock her car and her child secretly drives away and hits a pedestrian).

3. Liability of the manufacturer

The rules of product liability apply to software that is part of a physical product, such as a car. Thus, errors in the autonomous-driving software that cause malfunction or damages may lead to product liability of the car manufacturer.

The most interesting and important question in product liability law, however, is not whether the software used in a car suffered a defect. Since autonomous cars are based on AI algorithms that, in turn, are based on statistical methods, any AI to date inevitably produces a certain number of false results (i.e. false positives or false negatives). Thus, an AI system will sometimes “be wrong” in what it recognises and what it deducts from the data being fed to it. How these situations will be handled in regard to product liability is unclear, but our take is that this risk cannot be imposed on the car manufacturer. Eventually, the car operator will carry this risk.

4. Are there any specific mandatory insurance requirements for AVs?

In Austria, insurance is mandatory for any car operated on public roads. There are no additional requirements for autonomous cars. Test drivers are required to carry with them a written confirmation of an insurer for coverage of damages compensable under the strict liability of car operators.

5. Is there general liability based on warranty claims against the manufacturer for AVs?

In Austria, warranty claims can only be made to the seller of the car, not to the manufacturer. Warranty claims require the car suffering from a defect at the point in time it was delivered to the purchaser.

Instead, car manufacturers will be subject to strict liability under the applicable product liability laws.

Klaus-Pateter-CMS-AT
Klaus Pateter
Attorney-at-Law for Technology, Media & Telecommunications (TMC), Intellectual Property, Digitization & Start-ups
Vienna