Experimental Driving Delegation and Criminal Liability
One of the main purposes of the PACTE is to support innovation through a clear, predictable and protective legal regime. In the automotive sector, for example, the development of technologies relating to ‘driving delegation’ requires the definition of a regime capable of securing the experiments necessary for their development.
Real-life tests, which are essential, have to be carried out under optimal safety conditions, including at a legal level. To this end, the new law provides a framework for the issuance of experimental authorizations, as well as for criminal liability of the various participants.
The automated vehicles are distinguished from the traditional ones by a set of software and hardware elements that allow it to control its own operation over time, whether in sharing with a human driver or not. To use the Society of Automotive Engineers’ automaticity scale, driving delegation covers the three highest levels of vehicle automation :
automation conditioned by the occasional intervention of a human driver (level 3/5);
high automation which does not involve, unless there is a conditional exception, the intervention of a human driver (level 4/5);
total and unconditional automation (level 5/5).
Criteria for Experimental Authorization
Article 125 of the PACTE distinguishes between two cases, depending on whether the automated vehicle is tested on a public road or on a public transport lane.
On public roads, the authorization is subject “to the condition that the driving delegation system can be neutralized or deactivated by the driver at any time”. In the absence of a driver on-board, the person requesting authorization must report “evidence that a driver outside the vehicle, responsible for supervising the vehicle and its driving environment during the experiment, will be ready at any time to take control of the vehicle in order to carry out the maneuvers necessary to ensure the safety of the vehicle, its occupants and road users”.
With regard to public transport lanes, the legislator added the following conditions :
the use of a public transport vehicle;
or the consent of the road manager concerned and transport services using it.
Sharing Criminal Liability
The PACTE alternately retains the criminal liability of the driver or the holder of the authorization to experiment. Thus, the provisions of Article L121-1 of the Highway Code, according to which “the driver of a vehicle is criminally liable for offences committed by him in the driving of the said vehicle”, “shall not apply to the driver during periods when the driving delegation system, which he has activated in accordance with his conditions of use, is in operation and informs him that he is in a position to observe the traffic conditions and carry out any maneuvers in his place without delay” (Article 125).
The PACTE adds that Article L121-1 of the Highway Code applies again “after request from the driving system and at the end of a period of time for resuming control of the vehicle specified by the experimental authorization, of which the driver is informed. The same applies when the driver ignored the obvious circumstance that the conditions for using the driving delegation system, defined for the experiment, were not or no longer met” (Article 125).
In short, the new legislation criminally exempts the driver of a vehicle whenever a traffic violation or an offence of involuntary injury to the life or integrity of the person (Articles 221-6-1 and 222-19-1 of the Criminal Code) has been committed while the system of driving delegation was in operation.
While the presumption of imputation against the authorization holder poses no difficulty in terms of contraventions, the implementation of it takes a more delicate turn in terms of offences. The law states that the holder of the experimental authorization “is criminally liable for the offense of involuntary injury to the life or integrity of the person […] when he establishes a fault within the meaning of Article 121-3 [of the Criminal Code] in the implementation of the system of driving delegation” (Article 125).
Proof of deliberate or gross negligence shall only be required in the presence of a natural person.
The line dividing responsibilities has the merit of being clear, even if is does not remove the difficulties associated with the joint involvement in practice of the driver and the machine. For the moment, the legislator ignores the possibility for the driver to regain control of the machine in the event of any problem occurring in the automated management of the vehicle. Consideration of the actual overlapping of responsibilities is not yet on the agenda.