Since 2017, the German Act on Automated Driving [Gesetz zum automatisierten Fahren] has permitted automated systems (SAE Level 3) to take over the task of driving under certain conditions. A driver is still required for these systems. He no longer has to control the vehicle when in automated mode, but he must be ready to intervene.
The new German Act on Autonomous Driving [Gesetz zum autonomen Fahren] passed through the Bundesrat on 28 May 2021. It should come into force within the next few weeks in the form of amendments to the German Road Traffic Act [Straßenverkehrsgesetz] and the German Compulsory Insurance Act [Pflichtversicherungsgesetz]. From then on, it will possible to operate driverless vehicles (SAE Level 4) on public roads. This requires external "technical supervision" that is ready to intervene. This technical supervision will not permanently monitor the vehicle, but will have to react to signals, for example by immediately deactivating the autonomous driving function. The tasks of this technical supervision will affect the vehicle owner.
Additionally, the testing of automated and autonomous systems is being facilitated. To date, this has required individual or several (exceptional) authorisations at the level of the respective local federal states concerned. The new Act creates uniform nationwide regulations and establishes the German Federal Motor Transport Authority [Kraftfahrt-Bundesamt] as the centrally responsible approving authority insofar.
Unlimited usage scenarios in defined operating areas
The Act does not limit the potential usage scenarios for vehicles without drivers. It merely limits their possible use locally to the operating area defined by the owner and approved by the locally competent federal state authority.
According to the German Federal Ministry of Transport and Digital Infrastructure [Bundesministerium für Verkehr und digitale Infrastruktur - BMVI], conceivable usage scenarios include: shuttle transports from A to B, hub2hub transports (e.g. between two logistic centres), demand-driven transport services at off-peak times, the transport of passengers or goods on the first or last mile as well as "dual-mode vehicles" with functions such as automated valet parking.
The Act regulates, among other things:
- the technical construction requirements, characteristics and equipping of motor vehicles
- the granting of operating permits by the Federal Motor Transport Authority
- obligations for persons involved in the operation of the motor vehicles (owners and manufacturers)
- data processing.
With the declared aim of "reconciling the data protection aspect with the requirements of the roadworthy operation of a new type of technology", the Act is placing responsibility on owners and manufacturers and also regulates the data processing by the Federal Motor Transport Authority and federal state authorities.
When operating the vehicle, owners are required to store a catalogue of thirteen data categories. This includes the vehicle identification number, which, according to the explanatory memorandum to the Act (p. 43), "allows conclusions to be drawn about the owner of the vehicle". Furthermore, in addition to technical operating data and data on "environmental conditions", "position data" and information on the number and times of use of the autonomous driving function must also be stored. The obligation to store data is to apply as required, in particular in the event of interventions by the technical supervision in conflict scenarios such as accidents, in the event of evasive manoeuvres and in case of disruptions in the operational process.
Manufacturers must equip vehicles in such a way that the owner is able to comply with the legal storage obligations. Furthermore, they must inform the owner in a precise, clear and easily comprehensible manner about the privacy settings and the processing of the data that is going to be processed when the motor vehicle is operating in autonomous driving mode. The vehicle’s corresponding software must provide options as to the way in which the data processed in autonomous driving mode are stored and transmitted, and allow the owner to choose the appropriate settings.
According to the explanatory memorandum to the Act (p. 42), the regulation is based on the understanding that the owners "are the entitled parties to the data accruing during the operation of the motor vehicle in autonomous mode and that the manufacturers must technically and organisationally enable data sovereignty to be exercised".
Key questions concerning data processing remain unanswered
The Act leaves key questions of data processing unanswered or does not sufficiently regulate them. In particular, it provides no clarity on the extent to which the General Data Protection Regulation ("GDPR") and other provisions on the protection of personal data apply. As far as the question of the personal nature of the data is concerned, a distinction should be made, inter alia, according to whether or not the owner is simultaneously a passenger or other user of the vehicle. Within the scope of application of the GDPR, the central roles of "processor", "controller" and "joint controller" within the meaning of the GDPR cannot be clearly assigned to the parties involved in the data processing on the basis of the new Act. Consequently, prerequisites for allocating responsibility under data protection law are lacking.
Additionally, the explanatory memorandum to the Act introduces the terms "parties entitled to the data" [Berechtigte an den Daten] and "data sovereignty" [Datenhoheit] without explaining these terms and clarifying which legal positions should be associated with them. In all events, interpretations along the lines of "data ownership" would be highly problematic for various reasons and, as far as personal data are concerned, irreconcilable with the GDPR.
Furthermore, the text of the Act is vague. It remains unclear whether the data storage obligations only apply when the autonomous driving function is switched on or also when this function is deactivated. This is because the legal text inconsistently refers to the "operation of the motor vehicle" or the "operation of the motor vehicle in autonomous driving mode".
The definition of the storage scenarios is also not sufficiently specific. Above all, the question arises as to what exactly is meant by "conflict scenarios" and "near-accident scenarios". The conceivable spectrum ranges from traffic offences committed by other road users to acts of harassment outside the scope of traffic law regulation. It is also questionable how technical systems are supposed to recognise conflict scenarios and other storage scenarios as triggers for a data recording process.
There is also a need for clarification with regard to the obligation to store "environmental conditions". The motive for this regulation is to "identify external operating conditions that increasingly lead to critical occurrences". Insofar as this includes video recordings of other road users, the legal bases, information obligations and suitable anonymisation procedures urgently need to be clarified.
German Mobility Act and the BMWI Ordinance as additional regulatory options
An evaluation of the application of the Act is envisaged for the end of 2023. According to the explanatory memorandum to the Act (p. 42), the Federal Government will examine, among other things, whether comprehensive regulations on mobility data should be developed, "for example within the framework of a mobility data act".
Should a national mobility data act actually come into being, this would present an opportunity to remedy the above-mentioned shortcomings of the current Act. Moreover, the legislator needs to broaden its focus and also regulate the handling of data related to passengers, passers-by and other road users.
Under the new Act, the BMWI is empowered to regulate the technical details of data storage by ordinance with the consent of the Bundesrat, in particular "the exact times of storage", "the parameters of the data categories and the data formats".
The Act is a national interim solution with the aim of achieving a legal framework at the international level
At the international level, an adequate legal framework for autonomous driving still does not exist. In particular, Regulation EU 2018/858 refers to systems with persons driving the vehicle, i.e. specifically not to autonomous driving systems. According to its own statement, the BMVI will "resolutely advocate" an internationally uniform regulation at EU and UN-ECE level.
The current national legislative procedure is therefore designed to provide an interim solution. Consequently, many issues are still evolving. Sound judgement is urgently required when utilising the scope for design, preferably at international level, with the aim of giving stakeholders and promoters of autonomous and networked mobility the necessary degree of legal certainty.