1. Is the testing of AVs (SAE Levels 3-5) permitted on public roads in your jurisdiction?
In principle, it is not permitted to drive AVs (SEA Levels 3-5) on public roads in Switzerland.
Nevertheless, under certain conditions, a person might be permitted to test AVs from Levels 3-5 on public roads. Pursuant to Article 106 para 5 of the Federal Road Traffic Act (SVG), the Federal Council is empowered to issue special authorisations for conducting pilot tests with AVs. However, the testing of the vehicle is restricted to defined perimeters and routes and requires the consent of the respective owners of the roads.
The main criterion for the granting of a special authorisation for testing AVs is the following: The test must aim at new findings with respect to the status of technology or the use of AVs and systems. In addition, applicants are required to explain how the legal requirements that are not met during the test can ultimately be met through the implementation of suitable measures. An authorisation may only be granted, if the federal government deems the residual risks associated with the pilot test to be reasonable and proportional. In addition, a liability insurance policy covering damages in the amount of at least 100 million Swiss francs is required.
The special authorisation for testing is limited in time. After completion of the test, a final report has to be filed with the Federal Roads Office (FEDRO).
For further information, including the certification and documentation needed for a special authorisation see the factsheet of the Federal Roads Office: https://www.astra.admin.ch/astra/de/home/themen/intelligente-mobilitaet/pilotversuche.html
2. Are consumers permitted to use AVs (SAE Levels 3-5) on public roads in your jurisdiction?
No. Currently, the existing legislation in Switzerland provides that the vehicle operator must always control the vehicle and does not allow the driver to release the steering device (Article 31 para 1 SVG and Article 3 para 3 Regulation on traffic rules ("Verkehrsregelnverordnung", VRV). Hence, to permit the use of AVs on public roads by consumers, a change in law would be required.
The Federal Roads Office has developed a concept of traffic regulations and registration issues for AVs and drivers that would need to be adapted to allow AVs up to SEA Level 5 on public roads in Switzerland. The adjustments in legislation that are necessary are currently in the process of being drafted. This includes, among other things, adaptions of the SVG or of the Federal Act on Data Protection. It is, however, unclear when the final drafts will be available and whether such change in legislation will be approved by the Swiss Parliament.
3. Who has liability for damages caused by a car in automated driving mode?
For questions of liability, a differentiation must be made between the vehicle owner, vehicle operator and manufacturer.
Vehicle owner: In principle, according to Article 58 para 1 SVG, the owner of a motor vehicle is liable for the damages caused by the operation of such vehicle, regardless of whether he was driving the vehicle himself or someone else was driving. Such liability does not require any kind of fault by the owner.
There is currently no specific legislation with respect to the liability of the owner of cars driving in automated driving mode. The general rules apply and the vehicle owner becomes liable regardless of the cause for the damage. He is also liable if, for example, a malfunctioning automated driving system was the cause for the damage.
For this reason, the vehicle owner is required to have a motor vehicle liability insurance ("Motorfahrzeughaftpflichtversicherung", Art. 63 SVG), which covers any damage caused while a motor vehicle is operated.
Vehicle operator: The liability of the operator is assessed according to Article 41 para 1 of the Swiss Code of Obligations (CO). Article 41 CO constitutes a fault-based liability. Pursuant to the current Article 31 para 1 SVG, the operator must necessarily be in control of the vehicle at all times. Currently, Article 31 para 1 SVG also applies to AVs. There are no specific provisions for autonomous vehicles. Therefore, if the operator of an AV fails to comply with Article 31 para 1 SVG, he is automatically at fault and will be liable for any damage caused by the car.
If Article 31 para 1 SVG were to be amended in the future, in respect of an accident with a car in automated driving mode (e.g. an AV SEA Level 5), it may be that the operator will no longer be held to be automatically at fault and, therefore, the liability of vehicle operators may decrease in the future.
Manufacturers: Currently, the focus in Switzerland rests on the owner's and operator's liability. While the owner's liability will most likely also apply to AVs in the future, the operator's liability may decrease (see above).
If, in the future, a car in automated driving mode causes an accident, it may not be the fault of the operator but rather the fault of the manufacturer (e.g. failure of safety system). This shifts the question of liability to the product liability of the manufacturer pursuant to Article 1 Product Liability Act ("Produktehaftpflichtgesetz", PrHG;). But due to the complexity of the AVs' systems, it will become more difficult in the future to prove a causal defect, which is a condition for liability under the PrHG. Hence, it is likely that new forms of liability of manufacturers of AVs could be introduced into Swiss law in the future.
Joint and several liability: If the requirements are met for liability of the vehicle owner, operator and manufacturer, they are jointly and severally liable pursuant to Article 60 para 1 SVG. Since the damaged party has a direct claim against the insurance company of the vehicle owner (Article 65 SVG), such party usually pursues the insurance company. While recourse of the insurer against the vehicle operator is regulated by the law, there remain many issues regarding possible recourse to the manufacturer of the AV. Currently, the relevant legislation is being revised.
4. Are there any specific mandatory insurance requirements for AVs?
Since consumers are currently not allowed to drive an AV on public roads, the law does not provide for any specific insurance requirements. The mandatory motor vehicle liability insurance of the car owner would also apply to AVs.
Please also note that for obtaining a special testing authorisation, a liability insurance policy covering damages in the amount of at least 100 million Swiss francs is required.
5. Is there general liability based on warranty claims against the manufacturer for AVs?
Pursuant to Article 197 para 1 CO, there is a general warranty of the seller for the quality of sold goods. However, this warranty only applies to the seller and not to the manufacturer in general. In most cases, the manufacturer will not be the seller.
For the manufacturer, there is a specific product liability pursuant to Article 1 PrHG. Product liability requires a product defect, damage and the causal link between defect and resulting damage. In most cases, the fact that the product does not provide the safety that can be expected under due consideration of all circumstances gives rise to potential liability claims (Article 4 para 1 PrHG).