Written by: Christian Ostermöller, Frankfurt Office, King & Wood Mallesons
Germany has issued a draft law (“Draft”)  which aims to establish legal certainty in the use of autonomous vehicles (i.e. driverless systems) and provides a framework to give confidence to the auto industry to moving to enter the market in the future.
Although, very welcome it is to be noted that the current draft does leave a number of key questions unaddressed. Changes to the current Draft are expected in the near future.
This article provides a short summary of the current status in relation to the Draft:
1. The terminology of autonomous driving
The Draft serves to establish legal certainty for the use of autonomous vehicles, i.e. driverless systems in road traffic in accordance with level 4 of the SAE (Society of Automotive Engineers (SAE International)). The “SAE” levels used in the industry, development and research distinguish between five categories for the automated driving:
1. Stage 1: Assisted driving
Assisted driving defines, that the driver permanently takes over either steering or accelerator and brake. The other partial tasks are performed by the system in certain situations. The driver must constantly monitor the system and be ready to take over control at any time (e.g. parking assistant / automatic emergency brake assistant).
2. Stage 2: Partially automated driving
Partially automated driving is defined as a system that takes over the steering as well as the accelerator and brake – but only in certain situations and for a limited period of time. The driver must monitor the system continuously and be ready to take over control at any time (e.g. traffic jam assistant).
3. Stage 3: Highly automated driving
Highly automated driving is defined as a system that takes over steering as well as the accelerator and brakes independently. The driver does not have to monitor the system permanently but must be ready to take over control at any time – if the system requests.
4. Stage 4: Fully automated driving
Fully automated driving is defined as a system that takes over the complete control for a certain period of time or in certain situations and does not need to be monitored. If the system has to leave the automated mode then it will request the driver to take over. If this does not happen the system will engage to a risk-minimized status.
5. Stage 5: Autonomous driving
The final stage of autonomous driving is defined as when the system will assume complete control in all traffic situations and at all speeds. Humans are exclusively passengers and will no longer need to intervene in the driving process.
The Draft does not allow for category 5 autonomous driving but rather systems that will lead to category 4. That is the Draft envisages autonomous driving but not in all traffic situations.
The legal status applicable in Germany so far only enabled the category 4 as well.
2. Automated and autonomous driving in Germany
Automated driving in Germany was most recently stipulated by the “Law on Automated Driving” as of 21 June 2017. The core of the law modifies the German Road Traffic Act and allows for the implementation of rights and obligations for the vehicle driver during the automated driving phase: Under certain conditions, the driving task may be assumed by the system. The Draft thus creates a framework for highly and fully automated driving. However, there is still a role for a driver.
The Draft by the Federal Government aims to partly change the current legislative environment by allowing for unassisted autonomous driving which requires amendment to the German Road Traffic Act and the Compulsory Insurance Act.
At present the Draft only allows for autonomous driving within a limited scope. The Draft itself does not specify the scope; rather, autonomous driving is to be made possible in a “maximum number of application scenarios”. The specific manner in which this takes place, i.e. the definition of the local operational areas, will remain the competency of state governments.
According to the explanatory memorandum of the Draft and a statement by the German government a number of such scenarios are under consideration including (i) autonomous shuttle services, (ii) people transport systems for short distances, (iii) driverless connections between logistics centres, (iv) demand-oriented transport services in rural areas, and (v) dual-mode vehicles (e.g., autonomous parking at the push of a button).
Despite the abstract suggestions, the Draft would implement specific arrangements on (i) the technical requirements and approvals to be rendered by the Federal Motor Transport Authority, (ii) obligations of owners and manufacturers of vehicles, and (iii) data processing in autonomous vehicles.
In addition, the Draft introduces a so-called “technical supervision”, a (personal) control authority for autonomous vehicles. The “technical supervision” shall monitor such vehicles and in individual cases in which it deems it necessary, the authority shall be authorised to switch off the autonomous driving device, to initiate alternative driving manoeuvres and to contact the driver. 
The Draft further enables the incorporation of existing automated solutions into vehicles, such as autonomous vehicle parking (“dual mode”), although the legal basis for the future use of such solutions has not yet been established. The idea behind this seems to be that once the legal basis is available the solutions can be implemented immediately.
The aim of the Draft is to facilitate a speedy establishment of innovative technology, functions and services in Germany. The German Federal Transport Minister Andreas Scheuer, expects that vehicles with autonomous driving functions will start to operate in 2022.
3. Issues / Preview
The Draft still leaves some issues unresolved. As an example, the Draft allows for a manufacturer to include dual-mode solutions into the vehicles. However, the future use of such solutions will still require additional laws. The form and timing of such laws remains uncertain. It remains unclear whether the uncertainty as to the future legal basis and future prerequisites will hinder adoption of autonomous tech by manufacturers or whether this promise of future automation will be enough to inspire manufacturers to continue to develop and include new solutions in their vehicles in the hope clarification is forthcoming.
In addition, the Draft leaves the following issues unaddressed:
The German Ministry of Justice (“BMJV“) has refused its approval to the Draft due to several concerns so far. The following issues apply so far:
The BMJV criticizes in particular the data protection precautions taken by the Draft so far: According to its interpretation of the Draft, it should be possible to generate and to distribute the data on the driver’s position and route upon request of the Office for the Protection of the Constitution or the Federal Criminal Police Office. According to the BMJV, corresponding provisions have to be deleted: The owner of the vehicle must remain “master” of all personal data and the purely technical data at all times, i.e. being the ultimately decision maker for the use of the data.
The unclear liability provision is also criticized. Under current law, the liability relationships are unclear and the Draft does not clarify the issues in detail. In the absence of a driver, it is being considered whether primarily liability will reside with the owner of the autonomous vehicle. The manufacturer will at least be liable within the scope of the obligations imposed. Completely unclear is the scope of liability of the “technical supervisor”. The explanatory memorandum to the Draft states in this regard that the “technical supervisor” substitute certain function of a driver of a vehicle consequently it is to be expected that the “technical supervision” will assume a certain liability responsibility.
According to the Draft, the owner of an autonomous motor vehicle is obliged to conclude a liability insurance policy within the meaning of Sec. 1 sent. 1 of the German Compulsory Insurance Act in favour of the persons of the “technical supervision”. Beyond that, however, the BMJV insists on a reorganizing of the minimum insurance sums. Scope and content remain to be defined.
 This is explicitly stated in the explanatory memorandum to the “Draft Act Amending the Road Traffic Act and the Compulsory Insurance Act – Autonomous Driving Act” (“Entwurf eines Gesetzes zur Änderung des Straßenverkehrsgesetzes und des Pflichtversicherungsgesetzes – Gesetz zum autonomen Fahren”) of 08.02.2021, available at https://www.bmvi.de/SharedDocs/DE/Anlage/Gesetze/Gesetze-19/gesetz-aenderung-strassenverkehrsgesetz-pflichtversicherungsgesetz-autonomes-fahren.pdf?__blob=publicationFile.
 For a graphical overview see https://www.sae.org/news/press-room/2018/12/sae-international-releases-updated-visual-chart-for-its-%E2%80%9Clevels-of-driving-automation%E2%80%9D-standard-for-self-driving-vehicles; Time of retrieval: 19.02.2021 11:25 a.m.
 Compare, for example, statement by the German Federal Ministry of Transport and Digital Infrastructure: https://www.bmvi.de/SharedDocs/DE/Artikel/DG/gesetz-zum-autonomen-fahren.html; time of retrieval: 19.02.2021 11:40 a.m.
 See draft law (Fn. 2).
 See federal goverment statement: https://www.bundesregierung.de/breg-de/aktuelles/faq-autonomes-fahren-1852070; time of retrieval: 19.02.2021 11:46 a.m.
 See statement of the Federal Goverment loc. cit. (Fn. 6).
 See Article 1 Sec. 1e of the draft law (Fn. 2).
 See Article 1 Sec. 1f para. 1, 3 of the draft law (Fn. 2).
 See Article 1 Sec. 1g of the draft law (Fn. 2).
 See Article 1 Sec. 1f para. 2 of the draft law (Fn. 2).
 See Article 1 Sec. 1h of the draft law (Fn. 2).
 Statement of German Federal Ministry of Transport and Digital Infrastructure loc. cit. (Fn. 3).
 So reports the „Handelsblatt“, available at https://app.handelsblatt.com/politik/deutschland/plaene-des-verkehrsministers-mangelnder-datenschutz-justizministerin-lehnt-scheuers-gesetz-zum-autonomen-fahren-ab/26830532.html?ticket=ST-1260018-sJGmMDPbGc6hPSfdqSCI-ap1; time of retrieval: 19.02.2021 12:45 a.m.
 Compare Klimke – Legal Problems of Autonomous Driving („Rechtliche Probleme des autonomen Fahrens“), 2015.
 Compare, for example, the recitals to Sec. 8 German Road Traffic Law in the draft (Fn. 2).
 Compare the explanatory memorandum to article 2 in the draft (Fn. 2).
 See Article 2 of the draft (Fn. 2).