Autonomous vehicles law and regulation in Germany

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

Level 5 1 German Ministry of Transport and Digital Infrastructure is introducing a new and refined definition of Levels 1-5, in order to reflect technical possibilities and to prepare targeted legislation allowing automated driving. : Testing Level 5 AVs on public roads in Germany is not permitted as the presence of a person to take control of the vehicle is necessary, even for testing purposes. The systems themselves may, however, be tested if a driver remains available within the vehicle.

Level 3-4: There is no special provision in German law for the testing of Levels 3-4 AVs on public roads in Germany, but individual testing permits can be obtained according to general rules. The corresponding permits are generously granted, and numerous test sites exist for this purpose in Germany and in neighbouring countries. 

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

Level 5: No, consumers are not currently permitted to use Level 5 AVs on public roads in Germany. However, further to the amendment to the Road Traffic Act in 2017 allowing for Level 3 and Level 4 vehicles to be operated on public roads,  the government parties plan to establish the legal framework for the operation of fully autonomous vehicles on suitable infrastructures by 2021 subject to regulation within the UN/ECE framework. In this context, as part of the tender for 5G licences for Germany, the coverage of federal motorways has been made a necessary requirement. Amendment to the Road Traffic Act in 2017 conferred on the federal government the power to regulate and establish fully autonomous parking spaces; corresponding decrees are currently being drafted.

Level 3-4: Conditionally admissible under German law. In 2017, Germany enacted an amendment to the German Road Traffic Act that generally allows drivers to operate Level 3 and Level 4 vehicles (Sections 1a and 1b of the Road Traffic Act), overruling conflicting current behaviour regulations. Approval of these (and all) vehicles is, however, subject to UN/ECE-rules, which currently provide for only some Level 3 and 4 features. The Federal government is actively involved in the development of corresponding approval regulations at the UN/ECE level.

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

Liability in autonomous traffic is currently largely governed by general traffic liability rules as opposed to rules that are specific to AVs.

Registered keeper (owner): Liability of the owner would be subject to strict civil liability according to existing general rules, attenuated by force majeure and contributory negligence with disputes arising on the separation of responsibilities with the relevant manufacturer and system provider. The amendment to the Road Traffic Act of 2017 has doubled the maximum amount of strict liability for highly and fully automated driving functions to EUR 10 million. In addition, civil and criminal liability for negligence applies according to general regulations.

Driver / operator: Liability of the driver would be subject to civil liability for presumed negligence according to existing general rules, with disputes arising on the separation of responsibilities with the relevant manufacturer and system provider. In addition, liability for negligence applies according to general regulations. The amendment to the Road Traffic Act of 2017, however, excludes negligence insofar as the automated systems are used in accordance with their intended function while doubling the maximum amount of strict liability for highly and fully automated driving functions to EUR 10 million. In addition, civil and criminal liability for negligence applies according to general regulations.
Manufacturer: Liability of the manufacturer would be subject to strict civil liability for product defects resulting in death, bodily harm or object damage according to existing general rules. In addition, liability for negligence applies according to general regulations. Criminal liability for product defects is well established, but its application to autonomous driving has not yet been clarified. 

System provider: AV systems providers may be subject to civil and criminal liability for negligence for damages caused by the operated system according to existing general rules.

The expected shift of liability scenarios into the area of responsibility of manufacturers and system providers has led to an ongoing discussion in Germany on the configuration of alternative liability systems.

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

There are no mandatory insurance requirements that apply specifically to the use of AVs in Germany, but there are general mandatory insurance requirements for third party damages that apply to all vehicles driving on roads in Germany. However, mandatory insurance coverage for automated and highly automated vehicles is higher.

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

We are not aware of any legal requirements in Germany that apply specifically to warranty claims in respect to AVs. However, warranty claims for AVs would be subject to existing general sales law and, where applicable, consumer protection law and to be directed against the seller, whereas the manufacturer is (only) subject to strict civil liability for product defects resulting in death, bodily harm or object damage.

Portrait of Gerd Leutner
Dr. Gerd Leutner
Partner
Berlin
Portrait of Martin Eichholz
Dr. Martin Eichholz, Maître en droit, LL.B.
Associate
Berlin