The leitmotif of AI safety: the example of vehicles with driving delegation1
p. 373-402
Texte intégral
Only the unknown frightens men. But once a man has faced the unknown, that terror becomes the known.
Antoine de Saint Exupéry, Wind, Sand and Stars, 1938
1According to Samir Merabet, “the recognition of a legal status for artificial intelligence2 is likely to reduce distrust of it, and even create a feeling of confidence”3. The development of public policies and normative actions relating to vehicles with driving delegation – i.e. vehicles equipped with various devices and systems based on the use of artificial intelligence – marked by the tropism of safety, illustrates this assertion as well as this way of understanding the rules of law and their function. The safety of these new vehicles, defined as “the situation of the person or thing that is safe from risks”4, is the sine qua non of their social acceptability. A host of studies and public reports have emphasized that safety perceived through its various aspects5 is the main condition for rolling out vehicles with driving delegation. But safety is also the goal, the great promise, heralded by these technical objects: to radically reduce road deaths, in spite of public policies and technical advances that had already led to lowering the number of deaths in a very convincing way. Safety and controlling it through law are as such the condition and the purpose for developing artificial intelligence for automotive transport.
2Vehicles with driving delegation as such illustrate the promotion of this technology (AI) through law – supported, in this field, by a significant number of technical standards whose use it guides and coordinates – which can be observed at French, European and international level. In France, vehicles with driving delegation were quickly presented by the public authorities as an opportunity for the economy6. And it took only eight years, after the foundations of the industrial policy had been laid7, via the formulation of a national strategy for developing road mobility8, to see some of these technical artefacts being rolled out (imminently)9. The European Union, which has devoted several normative works and initiatives to automated mobility, has more recently adopted a proposal for a regulation establishing harmonized rules on artificial intelligence10. The four objectives of the proposed regulation are: “to ensure that AI systems placed on the market and used are safe and respect existing rules on fundamental rights and Union values, to ensure legal certainty to facilitate investment and innovation in AI, to enhance governance and effective enforcement of existing rules on fundamental rights and safety requirements applicable to AI systems and to facilitate the development of a single market for lawful, safe and trustworthy AI applications and prevent market fragmentation”. On an international level, rules applicable to road regulation are evolving. A lot of work has been undertaken since 2016 to adapt the Geneva (1949) and Vienna (1968) Conventions on Road Traffic to the introduction of vehicles equipped with automated driving systems. The technical regulations, which were drawn up in order to avoid foreseeable risks, are now ready to govern the introduction of communicating vehicles, such as those equipped with some automated driving systems11.
3When we consider the safety aspects of artificial intelligence, we must think about the types of safety we are referring to. In this context, we are dealing with three types of safety as regards artificial intelligence and more particularly as regards vehicles with driving delegation: legal certainty, technical certainty and data security.
4With regards to legal certainty or objective safety12, all companies involved in deploying vehicles with driving delegation need a legal framework for their activity as they cannot make major investments without having “legal guarantees”. This is in line with the logic of business law, which is characterized by the requirements for momentum, speed and safety. It is necessary to determine whether the current texts, which stem from the French national strategy in particular, are likely to provide legal support for the deployment of vehicles with driving delegation. Legal certainty is correlated with technical certainty, often referred to as the “reliability” of systems and their components. Against this background, the forecasts for deploying vehicles with driving delegation should not be exaggerated: “Six years ago, the future was “robot taxis” and fully-automated/self-driving passenger cars. Today, one of the trends is to offer the general public better driving assistance”13. Moreover, the automated vehicle is considered by the draft regulation on artificial intelligence as high-risk artificial intelligence14. Technical certainty is therefore fundamental to facilitate the social acceptability of this new mobility. As for data security, this is a major issue as regards deploying vehicles with driving delegation because of the mass of data (personal and otherwise) collected and processed by these types of vehicles as well as its storage. Cybersecurity, software updates and personal data protection are new but vital aspects of transport safety.
5We will study these three aspects of safety with regards to the issue of mobility by successively addressing the issue of legal certainty arising from the regulatory framework relating to the production and circulation of vehicles with driving delegation (I); that of driving safety and human-machine interaction (II); and finally that of cybersecurity (III).
I. The coherence of the regulatory framework as a guarantee of the legal certainty of the circulation of vehicles with driving delegation
6In private law, five disciplines are directly concerned by the development of vehicles with driving delegation: road traffic law, civil liability law, insurance law, criminal law and intellectual property law15. In public law, many matters including fundamental rights and freedoms are at stake. The French legislator did not contemplate adapting the five private law disciplines, but focused on road traffic law, criminal law and intellectual property law. Other European countries are not necessarily doing any better16 and recently France somewhat prided itself on being “in the lead among European and G7 countries in terms of the regulatory framework for the deployment of vehicles and services, beyond experimentation”17. In the United States, the legal framework in some states that have legislated on vehicles with driving delegation is far from perfect18. It is regrettable however that the French national strategy does not embrace the various doctrinal works on automated cars and in particular the "offer of law" produced by a group of authors under the direction of Lionel Andreu.
7We shall therefore come back to the texts that help ensure relative legal certainty as regards the development of automated vehicles. For the sake of the hierarchy of norms, we will discuss international and European sources first, followed by French national sources, which are more abundant.
A. The international and European framework for the deployment of vehicles with driving delegation
8It is regrettable that there is currently no specific European framework for the deployment of vehicles with driving delegation (1). As regards international law, it is evolving to facilitate this deployment (2).
1) The lack of a specific European framework
9Even if the European Commission considers that “The arrival on the market of increasingly automated and connected vehicles is the next frontier in transport”19, there is currently no text in European law specifically framing the deployment of vehicles with driving delegation. We can cite the European Parliament’s Resolution of 16 February 2017 in which it “Considers that the automotive sector is in most urgent need of efficient Union and global rules to ensure the cross-border development of automated and autonomous vehicles so as to fully exploit their economic potential and benefit from the positive effects of technological trends”20. It is also worth mentioning the non-binding European Parliament Resolution of 15 January 2019 on autonomous vehicles in European transport (2018/2089(INI)), which states that Europe should promote strict safety requirements for users. The proposal of 21 April 2021 for a Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence, which identifies vehicles with driving delegation as “high-risk” artificial intelligence systems, does not appear to be sufficiently general to regulate the use of automated vehicles. It would be appropriate to develop a special law for these vehicles that would be linked to a common law on artificial intelligence21.
2) Easing of the international legal framework
10The Vienna Convention on Road Traffic of 8 November 196822, which has higher authority than French law, did not allow the circulation of vehicles with driving delegation23 because of its Article 8, which stipulated in particular that: “Every moving vehicle or combination of vehicles shall have a driver.” and 8.5, which stated that “Every driver shall at all times be able to control his vehicle”. There is a paradigm shift with vehicles with driving delegation which do not always require a driver and constant control of the vehicle. In order to take this into account, a paragraph 5b was added to Article 8 of the Vienna Convention to permit “vehicle systems which influence the way vehicles are driven” and not fully-automated vehicles24.
11Moreover, three new regulations were adopted by the UNECE World Forum for Harmonization of Vehicle Regulations (WP. 29) of UNECE. These regulations came into effect on 22 January 202125 in 56 countries in Western, Central and Eastern Europe, Central Asia and North America. Regulation No. 15526 sets out uniform provisions for the approval of vehicles with regards to their cybersecurity and cybersecurity management system. And, Regulation No. 15627 lays down uniform provisions for the approval of vehicles with regards to software updates and the software update management system. Finally, Regulation No. 15728, known as ALKS29, aims to “establish uniform provisions for the approval of vehicles with regards to their Automated Lane Keeping Systems (ALKS). ALKS controls the lateral and longitudinal movement of the vehicle for extended periods without further driver command. ALKS is a system whereby the activated system is in primary control of the vehicle”.
B. The French legislative framework for the deployment of vehicles with driving delegation
12The legislative framework was developed gradually, starting with a framework for experimenting with vehicles with driving delegation (1). It then focused on the circulation of automated vehicles in France (2).
1) The framework for experimentation with vehicles with driving delegation
13The first texts concerned the experimentation of vehicles with driving delegation. These experiments are essential insofar as “the accumulation of experience (“learning by doing”) makes it possible [...] to specify the safety issues and to define the appropriate regulatory and normative framework, particularly for the validation or approval of these systems”. And the French government’s intention is not to “slow down the experiments that are necessary for the competitiveness of the industrial sector and the development of new mobility services”30.
14Act No. 2015-992 of 17 August 2015 on the energy transition for green growth authorized the French government to take by ordinance “any measure falling within the scope of the law in order to allow the circulation on the public highway of vehicles with partial or total driving delegation, whether they are private cars, goods vehicles or passenger transport vehicles, for experimental purposes, under conditions ensuring the safety of all users and providing, if necessary, for an appropriate liability regime”. Less than a year later, the Ordinance No.2016-1057 of 3August 2016 on the experimentation of vehicles with driving delegation on public roads was passed, providing in particular that: “The circulation for experimental purposes of a vehicle with partial or total driving delegation on a road open to public traffic is subject to the issue of an authorization intended to ensure the safety of the experimentation.”31.
15As for Article 125 of the PACTE Act of 11April 2019, it amends the legal framework for the experimentation of vehicles with driving delegation. According to the explanatory memorandum, it is necessary to revise “the current framework for experimentation” stemming from French Ordinance No. 2016-1057 of 3 August 2016 on the experimentation of vehicles with driving delegation on public roads, so that “any derogations from the Highway Code are accompanied, at legislative level, by specific provisions on liability, particularly criminal liability”. Although Act No. 2019-486 of 22 May 2019, known as the PACTE Act, distributes criminal liability alternatively between the driver and the holder of the experimentation permit32, it contains numerous shortcomings. The Act does not define the automated vehicle33 or the different level of automation of the driving systems. The Act does not mention the civil liability regime in the event of a traffic accident in which a vehicle with driving delegation is involved. This is regrettable insofar as the determination of the driver or guardian of the vehicle involved in the accident is a delicate issue in the context of vehicles with driving delegation34. The French PACTE Act does not consider the insurance arrangements for these vehicles either35.
2) The framework for the circulation of automated vehicles in France
16It is important to come back to the aforementioned French national strategy as it is the determining factor in the texts on vehicles with driving delegation. The first objective of the French national strategy for the development of automated vehicles, published on 14 May 2018, is “To develop the framework, between 2020 and 2022, to enable the circulation of highly-automated passenger cars, public transport vehicles and goods vehicles in France. If required, the Highway Code, liability rules and training can be adapted”. As regards the French national strategy for the development of automated road mobility 2020-2022, it consists of “finalizing the legislative and regulatory framework for the circulation of automated vehicles resulting from Article 31 of the LOM (French Act on the orientation of mobilities), for vehicles with a driver on board and those (including those without a driver on board) used as part of an organized passenger transport service on a predefined route or area (Q1 2022)”.
17In Chapter II of French Act No. 2019-1428 of 24 December 2019 on the orientation of mobilities (LOM Act) entitled: “Encouraging innovations in mobility”, the first section is dedicated to automated and connected vehicles. It is as such provided that the Government is authorized to take by ordinance any measure to adapt the legislation, in particular the Highway Code, to the case of the circulation on the public highway of vehicles with driving delegation, in particular by defining the liability regime applicable. Provision may be made with regards to this for appropriate information and training to be provided prior to making vehicles with driving delegation available, when such vehicles are sold or rented.
18Ordinance No. 2021-443 of 14 April 202136 is limited to specifying the criminal liability regime37 applicable in the event of the circulation of a vehicle with driving delegation38 and its terms and conditions of use. It is surprising that this Ordinance does not address the issues of civil liability39 and insurance, even though the report to the President of the French Republic on this Ordinance indicates that the preparation of the Ordinance was preceded by extensive consultation of stakeholders40. In comparison, the United Kingdom has a new civil liability regime specific to automated vehicles41.
19The same report states that “this framework was designed to be complementary to the European vehicle type-approval framework, which is currently being adapted to cover increasing automation”.
II. The legal and technical framework for driver information as a guarantee of driving safety
20The various standards, whether issued by professional manufacturers’ organizations or by States, make it possible to secure what is identified as the automated vehicle for the sake of language. But this normative legal certainty is not sufficient to enable its deployment and social acceptability. The development of an ecosystem of trust and safety is only possible if the framework for its use is effective and efficient. The trust of the various stakeholders is a social acceptability challenge. The technical certainty of the vehicle with driving delegation must be guaranteed to facilitate its use.
A. The degree of vehicle autonomy as a criterion for shared driving
21The introduction of the vehicle with driving delegation changes the driving activity, which initially was always a continuous activity, to a discontinuous one enabling, on the one hand, surrendering the control of the vehicle to the automaton, even on a temporary basis, and, on the other hand, activities ancillary to driving to be performed by the human being42.
22French Decree No. 2021-873 of 29 June 202143, without explicitly taking up the international classification, establishes a hierarchy of vehicles with driving delegation pursuant to the level of automation. It considers partially-, highly- and fully-automated vehicles and defines their characteristics44. This classification of the vehicle with driving delegation and its integration into positive law, alongside the non-automated vehicle, makes it a genuine multiform legal object, which cannot be ignored and which now goes beyond experimentation to become a consumer object45. This legal consecration makes it possible to establish the technical reality of the vehicle46.
23Driving delegation between humans and machines, which is more operational than autonomous, leads to a distribution of the activity of driving, which, we should mention, is an activity of driving and controlling a vehicle. Article 1.v of the Vienna Convention is explicit: ““Driver” means any person who drives a motor vehicle or other vehicle (including a cycle)...”. This text therefore considers that the driver is a natural person who controls the vehicle, manoeuvres it and drives it. In short, this person masters and controls the vehicle. Article 13(1) of the Vienna Convention specifies in this respect that “every driver of a vehicle shall in all circumstances have his vehicle under control so as to be able to exercise due and proper care and to be at all times in a position to perform all manoeuvres required of hi”.
24This interpretation is supported by national case law. As such, a person who is at the wheel of a towed vehicle and who has retained “a certain control of the vehicle” remains a driver as does the motorcyclist who gives a driving lesson to the person in front of the controls, since they have retained “the power of command over the motorbike, having reserved the possibility of intervening in the operation of the vehicle and of withdrawing control of it..”47.
25Apart from mastering and controlling the vehicle, the case law of the Court of Cassation also requires that the person is in the passenger cab in order to be recognized as a driver. Recurrently, this does not apply to persons who have left their cab48 while being close to the vehicle, or those who are about to enter or leave the vehicle, who change a wheel or who are ejected from the vehicle before the impact. From this point of view, French law is more demanding than the Vienna Convention, which does not require the driver to be present in the passenger cab49.
26As a result of driving delegation, the break in the driving activity changes the approach of the person as a driver who is then perceived as a service user. The service offered to the system by driving delegation means that the human being loses their pre-eminent role in the socio-technical system50 and is assigned more of a supervisory role51. The splitting of the driving activity, which becomes a service shared between the human being and the machine, is a fact. The vehicle, as a digital object, comprises a host of sensors and software which must be regularly updated to ensure safety. The service resulting from the interaction of the human being and machine is part of dynamics of renewal.
27French Ordinance No. 2021-443 of 14 April 2021 on the criminal liability regime applicable in the event of the circulation of a vehicle with driving delegation and its terms and conditions of use52 specifies that the terms and conditions of use of the vehicle with driving delegation are defined by the manufacturer. The manufacturer informs the user of these terms and conditions before the vehicle is made available. The information provided to the user is also a vital safety issue. In this respect, the Ordinance creates a new article, Article L.224-68-1 of the French Consumer Code, which specifies the terms and conditions of access to this information.
B. Information on the terms and conditions of use, a technical certainty issue
1) The content of the information
28As regards vehicles with driving delegation, information is a safety issue given the recognized high-risk artificial intelligence53. Information on the terms and conditions of use of the driving system will be provided at the time the vehicle is made available in the case of a sales or rental agreement. Article L.224-68-1 of the French Consumer Code stipulates that express mention of the provision of information must be included in the agreement. Can the absence of this mention invalidate the agreement or is it merely a clause intended to draw the attention of the user of the system?
29As a safety issue, the content of the information on the terms and conditions of use of vehicles with driving delegation is sufficiently broad to encompass all the functions of the system. It concerns the functional design of the system, the conditions and procedures for taking control of the system, and the implementation of dynamic control by the system54. This information seems to constitute the minimum that should be included in the terms and conditions of use, but other details may be added. The information delivered on the terms and conditions of use of the vehicle should also make it possible to draw the user’s attention to the dangers inherent to splitting the driving activity. The information issuer should ensure that they have provided appropriate information on the use of the vehicle, even to the point of guaranteeing it. But how can we be sure that the user has correctly received and understood the information? The need to put the user in a situation in order to check that they have received and understood the information should not be overlooked. The information will be pre-contractual information which the professional cannot waiver given the technical nature of the product, in other words, the vehicle with driving delegation55.
2) Practical arrangements for the exchange of the information to be delivered
30Information exists throughout the interaction between the system and its user. It will most definitely feature in the vehicle user manual and on the website of the brand marketing the vehicle. But this information will also be specified in an oral manner during a contractual provision such as sales or a rental agreement. Should the content of the oral information be strictly identical to that contained on the paper or computer medium? Will it not be summarized and as such watered down to enable the vehicle user to take control quickly?56
31In any event, the information must be relevant to enable correct execution and efficient and safe use of the vehicle. The lack of information or partial absence of information seriously compromises the desired safety and may lead to civil liability. It is therefore vital that the information is explicit and relevant to the user of the system. A user who has suffered damage as a result of a failure to provide information on the terms and conditions of use of the vehicle must prove (with difficulty) that the information required to avoid the danger or damage was not provided.
32The obligation to provide information is mandatory for the manufacturer and supplier, but does not relieve the user of their obligation to obtain information. Moreover, this information, which is accessible to both professionals and users of the system, must be made public. Any communication medium is possible, including electronic communication. “Clear, adequate information must be provided to users, as well as appropriate human supervision, to ensure a high level of robustness, safety and accuracy”57. By generalizing information, the system reaches a wide audience and as many people as possible are aware of it.
33The provision of information on the terms and conditions of use of the system upstream is essential, but real-time information, communicated to the driver during the journey, should not be overlooked. Both determine the effectiveness of the interaction, and as such driving safety58. “Be aware and informed of their proper use prior to starting the journey” and “understand if, and when, it is necessary to exercise dynamic control to complete a journey” are the purposes that the recent resolution of the Global Forum for Road Traffic Safety on the deployment of fully-automated vehicles59 assigns to the communication of information to users of automated driving systems.
34In this respect, two types of data should be provided to users: information on the functional design of the vehicle’s driving system and information on how the system is used60. Informing the driver about the state of the system and its operating status, warning the driver about potential risks and of the forthcoming requirement to take control, alerting them of an action to be taken, to be stopped, of a failure and of an imminent risk are some of the data that should be transmitted by the human-machine interface, based on an increasing level of criticality61.
35To be sure, particularly in the event of an issue when the system is exercising dynamic control, it must provide information to alert the driver, make a request to regain control, and initiate and execute a minimal risk manoeuvre if control is not regained at the end of the transition period or in the event of a serious failure62. It appears that in the form of a process, the system must provide prioritized and objective information to the user. Once again, failure to follow this process could result in liability for a number of people involved in the development of the system.
C. Dynamic control as a criterion for system use
1) Dynamic control as a criterion for distribution between the system and the user
36The content of driving activity is redefined with regards to vehicles with driving delegation. The sharing of tasks between the driver and the system obliges to rethink the content of the notion of the driver. As regards vehicles without driving delegation, the driver is the one who has the power to drive and control the vehicle. They are also the ones who can be held liable for traffic offences. As regards vehicles with driving delegation, the activity of dynamic control63, which corresponds to the driver surrendering control to the system, appears to be fundamental and even essential. In Article 2, French Decree No. 2021-873 of 29 June 2021 defines this control as “the execution of all operational and tactical functions in real time necessary for the movement of the vehicle. These include control of the lateral and longitudinal movement of the vehicle, monitoring the road environment, reactions to events in road traffic and preparing and signalling manoeuvres”64. The merit of this definition is that it puts an end to the procrastination surrounding this new concept of driving a vehicle with driving delegation. It also contrasts with the situation for vehicles without driving delegation, where at no time is the driving activity directly defined, but apprehended through the person of the driver or the notion of the vehicle. This dynamic control also undermines the distinction between physical and intellectual control of the driving activity.
37The Decree provides significant clarification of the obligations of the user of the driving system as regards dynamic control. As such, Article R. 412-7 of the French Highway Code states that the provisions of Article R. 412-6 of the French Highway Code do not apply to the driver. In this respect, the French Highway Code defines a certain number of obligations for the driver. These obligations fall into two categories: firstly, obligations relating to the driving activity itself and, secondly, obligations relating to the driver’s behaviour which they must observe at the wheel of the vehicle or when certain events occur.
38The Decree specifies that these obligations do not apply to the user of the system and later states that “when the vehicle is partially- or highly-automated, the driver must be constantly in a position to respond to a request to take control. Their possibilities of movement and their field of vision must not be reduced by the number or position of passengers, by the objects transported or by the affixing of non-transparent objects to the windows”. When addressed in the form of an injunction, the user of the system must be constantly in a position to respond to a request to take control.
39The Decree adds that driver takeover, when requested by the system, must not be hindered by passengers or objects. Takeover is defined as the user’s exercise of dynamic control, the details of which are specified in the terms and conditions of use. All explanations given in a technical field to ensure approximation is avoided and system safety is guaranteed. This takeover requirement, which appears to be the most critical aspect of driving delegation, implies that the user must pay extra attention and diligence to the system and the driving environment, despite the ancillary activities they may be engaged in. The removal of inappropriate obligations as regards vehicles with driving delegation is replaced by an obligation of constant monitoring which may engage the user’s liability. The user’s full attention must be required in terms of the situation and any other non-driving activity that monopolizes vigilance and attention at the wheel should be banned. Dynamic control as such becomes the keystone of human-machine interaction with respect to driving delegation. It determines whether or not criminal liability is incurred in the event of an offence.
40In vehicles without driving delegation, the driver is criminally liable for the offences committed. In vehicles with driving delegation, reference is made to dynamic control. As such, when dynamic control is exercised by the system, the driver is exempted from criminal liability in the event of an offence. The vehicle manufacturer will be held criminally liable in the event of a fine or for the offence of unintentional injury to life or limb. The driver’s criminal liability will then be reinstated in strictly-defined cases: “From the moment the driver exercises dynamic control of the vehicle following a return to control of the vehicle; In the absence of return to control of the vehicle by the driver at the end of the transition period following a request from the automated driving system under the conditions provided for in II of Article L. 319-3; To the driver who does not respect the summonses, injunctions or indications given by the forces of law and order or the rules of priority for the passage of priority general interest vehicles provided for in the present Code”65. Proof of the offence will be provided by a system for storing data on driving delegation status, recording in particular the conditions of activation or deactivation of the system66. This data will be used to establish the elements of the offence. In order to counteract the sensitivity and volatility of the data, the Ordinance requires the manufacturer to guarantee the integrity of the data mentioned as well as its access67.
2) The safety imperative combined with adequate training
41The fundamental issue of safety requires a rigorous framework of positive law in order to avoid abuse. Far from being breakthrough technology, automated driving systems permit incremental adaptation of the traditional vehicle68. The much sought-after safety is achieved through normative security correlated with technical certainty. The definition of automated driving systems cannot be operational without the legal aspect69. From the moment the system takes over driving and controlling the vehicle and leaves the human being free, the technique must be governed by standards defining the environment and the terms and conditions of implementation. This is demonstrated by the technical regulation on Automated Lane Keeping Systems (ALKS)70, which sets out uniform requirements for the approval of vehicles with regard to their automated lane keeping systems and which came into effect internationally in January 2021, enabling the signatory States to consider the approval and deployment of vehicles equipped with such systems. From a technical point of view, ALKS “controls the lateral and longitudinal movement of the vehicle for extended periods without further driver command”71. ALKS is subject to strict normative control. As such, it can only be used at a certain speed (60 km/h), only on specific traffic lanes and only on certain types of vehicles (...).
42The framework of the driving system as defined by international standards must be assessed by the States in the light of their own regulations in order to ensure their compliance. This compliance check through a declaration is important to establish legal certainty of the system. Automated driving systems cannot be deployed without the safety imperative. This issue is fully reflected in the obligation to provide information at all levels of system presence. However, this information is nothing if it is not linked to appropriate training of the system user.
43French Ordinance No. 2021-443 of 14 April 2021 and French Decree No. 2021-873 of 29 June 2021 do not mention the training of the system user, unlike what was provided for in Article 31 of French Act No. 2019-1428 of 24 December 2019, known as the LOM Act. At this stage of their development, automated driving systems involve a new form of collaboration between human beings and the machine for which the mere provision of information on these systems and the terms and conditions of their operation, however complete, cannot prepare the way72.
44The absence of any reference to a public policy on training (initial and continuous) for drivers of vehicles with driving delegation is no doubt due to the fact that the subject of training in this field is divisive in terms of the recipient of the training, but also in terms of the content of the training to be provided. As such, texts without normative scope consider that it is up to the manufacturer to provide “education and training for employees, dealers, distributors and consumers” by creating and proposing specific training programmes, whereas others envisage adapting driver training, which should henceforth include “additional periodic modules on the use of driving assistance mechanisms”73. Training should be seen as a means of defining not only the content and procedures for training future drivers of vehicles equipped with automated driving systems, which could be updated in terms of knowledge of the vehicle, these systems and practical tests designed to check the driver’s ability to interact safely with the automatic pilot, but also that of the trainers themselves, whose profile should be identified74.
III. The technical framework for driving systems and cybersecurity as a guarantee for automotive transport safety
45The deployment of automated driving systems (ADS) is changing the nature of the automotive risk since it is these technical ensembles which, in combination with many others, will eventually ensure the safety of transport without human intervention. International road traffic standards and now “government legislation”75, which is partly derived from them, have begun to take note of this change with regards to the new interactions generated inside and outside the vehicle by these systems. In this respect, the texts are first of all concerned with standardizing the human-machine relationship, understood exclusively in terms of the requirements and capacities of technology, the precise, mechanistic, imperative breakdown of the various supposed behaviours of the driver and driver triggering events76 has little to do with the method and purpose of law. The synthetic, vague, impressionistic notion of “control of the vehicle”, into which the uncountable mass of driving situations could merge under the judge’s vigilant assessment of the driver’s actions and inactions, has been replaced by the very precise “dynamic control of the vehicle”77. It is derived from technical nomenclatures and directly fixes the time and content of human intervention: this reduces the scope of qualification and inevitably impacts the method of proof. The Act then inaugurates a kind of risk guarantee backed by the penal norm, which is necessarily far removed from individual liability, just as the transformation of the notion of driving is from the autonomy of the subject of law. In order to adapt it to the new technical reality, these texts as such modify the economy of part of the traffic law while exerting a certain pressure on several legal concepts.
46As such, it is from a purely instrumental perspective – recurrent, if not systematic, in ultra-technocratic regimes – that the law gives its form and force to a law that is, in reality, similar to standardization. Legal and technical rationality clash here, in an area – the human-machine relationship – usually controlled by the former. Such complex technologies cannot suffer the vagaries of the application of certain legal rules which, by virtue of their very indeterminacy, constitute the vector of individual autonomy. Unpredictability is, it should be mentioned, the symptom of freedom and the law’s function is only to make our interactions compatible and not strictly determinable. The political promotion of automated driving systems, built on speeches with skilfully chosen premises, in this instance becomes, as in other fields, the formal expression of a reversal of values. Driver autonomy, presented as an unacceptable risk factor, and their traditional liability, are replaced by vehicle autonomy, which implies first of all disciplining driver behaviour before dispensing with their intervention completely and thereby reducing part of their autonomy in their relationship to space and mobility. Artificial intelligence is certainly not at issue – even though the compatibility between digital and legal rationality is uncertain – but the social and political context of its development and the orientation given to its uses are decisive. This is all too rarely emphasized. We dare not imagine the application of a state of emergency or other exceptional regime with vehicles that can be neutralized remotely, start conditionally or be restricted to certain routes! Yet this is what technology enables.
47If we leave aside the question of the framework for the new interactions implied by the introduction of ADS and address the question of the production and operating conditions of these systems, it appears that, here too, new technical rules, commensurate with the issues and risks raised by ADS, have recently been adopted at international and European level. It should be recalled that there are traditionally a number of norms and standards applicable to vehicles, their components – and their production conditions –, characteristics, performance and test methods. These are closely linked to technical rules – rules of law in their own right – which lay down the principles, objectives, technical requirements, sometimes, and above all, the conditions and procedures for the approval of the various devices that a vehicle comprises. In this age of automation, they are even more essential, since – subject to the driver’s intervention – it is mainly these standards and technical rules that constitute the primary support for transport safety.
48ADS are “systems of systems”, i.e. complex systems that combine hardware components for collecting (sensors, radars, telemeters) and information processing (computers), with effectors (factors that act on vehicle components), linked in some way by a software layer that will develop a driving strategy based on the data collected. Everyone knows that the more complex a technical environment is, the more fragile it is. “No existing system on board a vehicle today can perfectly manage failures and errors, whether they come from hardware, software or sensors”78. To add to the complexity, this system is itself integrated into the overall electronic architecture of the vehicle (in particular the cab and engine management systems). “The interaction of these electronic systems can give rise to certain malfunctions that are difficult or impossible to foresee during the development phase, but also impossible to reproduce once the failure has occurred in real driving conditions. Some failures may be fortuitous (…) or may have their source in other electronic equipment.”79. The question of the safety of the physical and software components of these ADS, their reliability and outage tolerance thus constitutes a first challenge before such vehicles are put into circulation. It is coupled with an equally important aspect, unknown to the analogue world, as a result of the transformation of the vehicle into a digital object, i.e. an instance of information collection, production and processing: for preserving the integrity and confidentiality of data and information systems. Cybersecurity is a key issue both because of its impact on transport safety – in the recent past vehicles have shown a number of vulnerabilities – and because of its nature, both technical and organizational.
49The new Regulations Nos. 155, 156 and 157, adopted by the UNECE World Forum for Harmonization of Vehicle Regulations address these two challenges (WP. 29) of UNECE. These texts are an important step for disseminating this technique, since there were previously no regulations specifically adapted to ADS or to cybersecurity. They enable the signatory states of the 1998 agreement80 to envisage the approval of vehicles equipped with these technologies. We will address these texts, which aim to guarantee the foreseeable risks arising from the use of these systems, in turn.
A. Technical Regulation on Automated Lane Keeping Systems (ALKS)
50Regulation No. 157 is a first regulatory step towards the introduction of ADS. To our knowledge, there was no technical regulation specifically applicable to such a system or to similar automated systems. Although its technical qualification and legal implications are – as is only natural – the subject of discussion81, the technical regulation considers this object in all its complexity in order to guarantee both the safety of the system and the safety of its use. To ensure that the system is well designed to minimize risks and is likely to operate safely, different types of tests must be carried out by manufacturers and approval authorities. Once again, it is important to be aware that the complexity of the systems in question leads to changes in the way tests are performed as part of the certification process.
51ALKS, applicable to M1 vehicles82, provides longitudinal and lateral control of the vehicle for extended periods. In other words, the system drives the vehicle under the supervision of the driver. However, the functional design range of the ADS is very limited. It can only be activated on roads where pedestrians and cyclists are prohibited and which “by design physically separate opposing traffic”. Motorways and expressways are however excluded – at least initially – from the functional design area of the system since the maximum operating speed of ALKS is 60 km/h. With this in mind, the regulation contains two kinds of requirements: the first relates to the operational safety of the system, the second to the human-machine interface. The safety requirements of the regulation are based on the general principle that the system should be able to handle all driving situations, including malfunctions, during operation and should not create unreasonable risks for vehicle occupants and road users. The system must not cause avoidable and reasonably foreseeable collisions83. If a collision can be avoided without causing another collision, it should be avoided. It should be noted that the obligations of control and prudence of the vehicle expected of the driver are imputed to the technical object and will be reflected in the formulation of multiple prescriptions to achieve this objective. This principle is as such based on various specifications – which the manufacturer must prove to the approval authority – relating to the operating conditions of the system, which can, in the final analysis, be seen as guarantees of the risks. In no particular order, the system must control the speed of the vehicle, comply with road regulations, detect the risk of collision and stop the vehicle in the event of an obstacle, and be able to carry out emergency manoeuvres and operate in degraded mode. Regulation No.157 also addresses the human-machine interface and its design since, within the scope of driving delegation, transport safety also depends on this critical moment of informing the driver and handing over control of the vehicle to the human or the machine. It is based on system detection of driver availability and attention and the information transmitted to the driver during the journey. The system must as such be able to detect driver presence, driver availability (personal-data-generating device), to execute manoeuvres in the event of a takeover as well as driver level of attention. It also deals with the conditions for activating and deactivating the automated mode and the means of transmitting information as regards system operating status and the manoeuvres to be performed in the event of a transition.
52As part of the approval procedure for these systems, the manufacturer must prove that the automated lane keeping system complies with the aforementioned specifications and that it has been designed and developed in such a way as to avoid any unreasonable risks for road users and passengers. In this respect, the manufacturer provides all the documentation required to understand system operation (e.g. list of events triggering transition requests, how driver availability is assessed) even documentation that could be protected by intellectual property rights. The manufacturer also provides all documentation on the components and associated diagrams, the positioning of sensors, the type and dimensions of surrounding materials and the software architecture chosen to ensure safe system operation. To check that the system is well designed to minimize risk and likely to operate safely with its components, various tests can be performed. Once again, it is important to be aware that the complexity of the systems in question leads to changes in the way tests are performed as part of the certification process.
53Significant work on the development of such a regulation is underway. At the European Union level, Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles84 lays down the legal basis for future technical standards applicable to “systems intended to replace the driver’s control of the vehicle, including signalling, steering, accelerating and braking”85 and to other components fitted to vehicles with driving delegation. But it is mainly the discussions in WP. 29 that should be mentioned. Through the various outputs of this working group – and particularly those of the newly formed Working Party on Automated/Autonomous and Connected Vehicles – we can already observe the definition of a number of common principles intended to guide the development of the normative framework applicable to vehicles with driving delegation and ADS - in particular an acceptable level of risk as described above - and proposals aimed particularly at adapting the certification methodologies, as the complexity of this technology means that the safety of vehicles with driving delegation must be considered at a level of criticality comparable to that of aeronautics86. “With the introduction of automated driving systems complexity and thereby the number of software-based functions will continue to increase. Compared to conventional vehicles, the potentially affected safety-areas and variances of scenarios will increase and cannot fully be assessed with a limited number of tests that are performed on a test track or test bench”87. This is why a new innovative certification scheme based on a combination of road tests, physical certification tests and simulation tests has been proposed, and this new strategy is currently being developed88.
B. Technical regulations on data protection
54As a production, processing and information-collecting unit, the CAV is similar to a cyber-physical object. Because it evolves as much in a physical space as in a digital one, it is therefore subject to hacking and cyber-attacks, which makes the integrity of the embedded processing systems – software, algorithms – and data communication a central issue – and particularly crucial in terms of the social acceptability of this technique89. In short, it is the “electronic and electrical components” of road vehicles and their functions that need to be protected in this way, but this is not an obvious approach, since information security is at least as much an organizational matter as a technical one, and the automotive sector is particularly fragmented. The technical regulation on data management, which already provides a general framework for current and future technical developments, is based on Regulation 155 on the cybersecurity of vehicles and their cybersecurity management system90 and related Regulation No. 156 on in-vehicle software updating.
55Regulation 155, applicable to vehicles equipped with automated level-3 driving function – including electric vehicles – provides a flexible and comprehensive response to the issue of managing the risks related to the integrity of data processed by or received by the vehicle. As it favours a systemic and organizational approach it does not impose any particular technical requirements. As such, this Regulation leaves the manufacturer free to choose the means to be implemented to ensure the security of the vehicle’s information systems with regards to certain standards (ISO 21434) and recognized procedures and processes. The formulation of such technical requirements did not seem appropriate in view of the rapid development of technologies and threats in this field. In other words, the text only formulates an obligation of result that does not concern the protection of the integrity of the data itself, but the respect, by manufacturers, of “cybersecurity management processes”91 capable of ensuring it. The Regulation places the manufacturer as key to defining risks, procedures and governance measures to mitigate cyber threats and protect vehicles from cyber attacks. As cybersecurity is as much an organizational issue as a technical one, the Regulation creates, under its responsibility, a normative framework which aims to structure a production organization that would ensure, throughout the vehicle life cycle (7.2.2. 1 of the Regulation), on the one hand, that all threats (such as deletion, unauthorized manipulation, introduction of malicious software, unauthorized access to the system, etc.) are taken into account and, on the other hand, that appropriate measures are taken to minimize the risks to an acceptable level. It is up to the manufacturer to prove to the approval authorities (7.2.2.1 to 7.2.2.4) that they have implemented appropriate technical and organizational measures to deal with these threats; in this sense, given the fragmentation of the automotive sector, they are also responsible for ensuring their own vulnerability management system is implemented by their suppliers92. The manufacturer must therefore “report on the risk assessment (which takes place during the development phase or retrospectively), the results and tests performed, the measures taken for the type of vehicle in question (...), implement appropriate cybersecurity measures (...), detect and react to cyber attack threats”. In short, the manufacturer is obliged to ensure the integrity of the vehicle’s data and information systems from the moment it is designed until the day it can no longer be driven. The cybersecurity approval is as such of vital importance, since it is a condition for the assessment of the vehicle type for the purposes of approval (Article 7.3.1). Without it, it is simply not possible to put the vehicle on the road, which is appropriate in view of the threats and risks relating to data security. This is now merged with the issue of transport safety. Above and beyond this, this Regulation constitutes a (technical) guarantee for the protection of personal data (Article 34 of the French Data Protection Act and Article 5-1° of the GDPR93), legislation with which this technical Regulation interacts, without however prejudicing its application.
56Although it is related, vehicle software updating is, due to its specificities, the subject of a separate regulation94. Given the influence of updates on vehicle characteristics and functionalities, a systemic approach (the regulation refers to “the software update management system”) is also favoured here. Several sets of complementary obligations are incumbent on the manufacturer, who is responsible for defining and implementing the processes and procedures related to updates. More specifically, the text distinguishes between the procedures applicable to updates (7.1.1 and 7.1.2) and the requirements applicable to the safety and security of their implementation (7.1.3).
57Firstly, it requires the formulation of several procedures to ensure the transparency and verifiability of updates and their impact on the vehicle. These include in particular: processes for retaining information relevant to type-approval checks; processes for assessing the compatibility of an update with the target vehicle configuration or its impact on any system required for safe use of the vehicle and processes for identifying different versions of the software. As updates may now impact or change the behaviour and functionality of the vehicle after type-approval or even after registration, the regulation also requires the manufacturer to assess whether the software update will directly or indirectly affect the conformity of system approvals95. If this is the case, the manufacturer is required to contact the approval authority to request an extension of approval or a new approval for the systems concerned.
58The definition of these procedures is accompanied by precise requirements as regards safety and security when applying updates, especially when this is done remotely. Generally-speaking, the download of the update should not affect travel or impose a particular location, unless the download has safety or security implications. In this respect, the manufacturer should ensure that the vehicle can restore the system “to its previous version in the event of an update failure or interruption” and even that the vehicle can be put into safe mode after an update failure. The manufacturer must also ensure that the vehicle has sufficient power to perform and complete the update procedure and even that the user can be notified. The user is the natural recipient of specific information about the update, such as purpose, importance, planned changes, duration as well as vehicle functions impacted. In the event of a safety risk associated with an update, the manufacturer must ensure that the vehicle cannot be driven while the update is underway or that the driver cannot use the vehicle function that would affect safety. As regards the safety and security of updates, which is related to cybersecurity, it should be noted that the manufacturer must be able to prove to the approval authority that their update process ensures protection so as to avoid manipulation and alteration of information during communication and/or processing.
Notes de bas de page
1 The first part was written by Sébastien Jambort, the second part by Marie Rakotovahiny and the third part by Laurent Teresi.
2 Artificial intelligence defined as “a computerized system capable of making an autonomous choice, independently from the person who designed or uses it” S. MERABET, Vers un droit de l’intelligence artificielle (Moving towards a law on artificial intelligence), thesis Aix-Marseille 2018, No. 516 p. 492.
3 S. Merabet, op. cit., No. 516, p. 491.
4 G. Cornu, Dictionnaire des termes juridiques (translated in English in a volume entitled “Dictionary of the Civil Code”), 2014, PUF, p. 942.
5 V. infra n° 3.
6 This vision is shared by the European Union: “The EU automotive industry, with its expertise in developing vehicle technologies, is well-positioned to seize this opportunity”, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0283&from=FR, p. 1.
7 In France, it all began in 2014 with the drafting of an “Industrial roadmap for developing automated vehicles”. Then in 2015, the “first experiments with automated shuttles took place”. In 2017, Mrs Anne-Marie Idrac was appointed by the French government as the Head of the strategy for the development of automated vehicles. In 2018, a “Strategic framework for public action for the development of automated vehicles” was drawn up, as well as the “Presentation of the draft law on the orientation of mobilities”.
8 https://www.ecologie.gouv.fr/en/automated-vehicles#:~:text=La%20strat%C3%A9gie%20%20nationale%20de%20d%C3%A9veloppement%20de%20la%20mobilit%C3%A9,des%20syst%C3%A8mes%20et%20des%20services%20de%20mobilit%C3%A9%20automatis%C3%A9s: “the national strategy for developing automated road mobility constitutes the framework for public action in France to support the development of automated-mobility vehicles, then systems and services.”
9 In this respect, it is worth remembering that the period from 2020 to 2022 is to be that of the “Deployment of highly-automated vehicles”. The French Ministry for Ecological Transition states that: “The strategy published on 15 December 2020 aims to make France the preferred location in Europe for the deployment of automated road mobility services, through actions that focus in particular on safety regulations”. The entry into effect of technical regulations for the approval of cybersecurity management systems and regulations applicable to semi-automatic driving devices authorize the entry into circulation of vehicles with driving delegation (limited to a specific scope of application, however, see Part III).
10 Proposal for a regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts (COM(2021) 206 final).
11 Far from being a homogeneous reality, driving delegation is a transition of situations involving a variable distribution of driving activity between humans and the driving system. Vehicle autonomy and automation form a ridgeline of the situation in which the driver finds themselves in relation to the machine. The level of autonomy of the system has been the criterion supporting the implementation of a taxonomy proposed by the Society of Automotive Engineers and reiterated by public authorities and manufacturers based on its capacity to perform the manoeuvres entrusted to humans. These analyses, paving the way for shared driving, paint a picture of a new configuration of interactions between the human driver and the automated driving system. As such, they indicate that the risks associated with automated driving depend closely on the type of driving system, since these systems are characterized by their ability, to a greater or lesser extent, to dispense with human intervention to control the vehicle. According to Michèle Guilbot, at level 0, there is “no automation”; at level 1, “a system may assist the driver by performing part of the acceleration/deceleration functions”; at level 2, automation is “atrial”; at level 3, automation is “conditional”; at level 4, automation is “high” and at level 5, automation is “full”; M. GUILBOT, "Le véhicule autonome, les conditions juridiques de son déploiement" (The automated vehicle, the legal conditions for its deployment), RISEO 2018-1, p. 54.
12 J.-L. Bergel (2008). La sécurité juridique (Legal certainty). An article of the journal Revue du notariat, 110(2), 271-285. https://doi.org/10.7202/1045538ar.
13 A. Piquard, La voiture autonome de la folie à l’âge de raison (The autonomous car from madness to the age of reason), Le Monde, 9 April 2021.
14 C. Castets-Renard, Le règlement de l’Union européenne encadrant l’IA : un tournant mondial ? (European Union Regulation on AI : a global turning point?), D. 2021, p. 952 ; C. Crichton, Projet de règlement sur l’IA (II) : une approche fondée sur les risques (Draft Regulation on AI (II): a risk-based approach), Eur. Comm., 21 Apr. 2021, COM(2021) 206 final, Artificial Intelligence Act, Annexes to the Proposal, D. UPD., 4 May 2021.
15 In this respect, L. Andreu, Des voitures autonomes, une offre de loi (Automated cars, an offer of law), coll. Essais, Dalloz 2018, p. 14, No. 00.10.
16 Ibid., p.11.
17 https://www.ecologie.gouv.fr/vehicules-automatises.
18 Ibid., p. 9, No. 00.08.
19 See https://eur-lex.europa.eu/resource.html?uri=cellar:0e8b694e-59b5-11e8-ab41-01aa75ed71a1.0003.02/DOC_1&format=PDF, p. 1.
20 European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics, 2015/2103 (INL), AB.
21 S. Merabet, op. cit.
22 Vienna Convention on Road Traffic of 8 Nov. 1968, United Nations, Treaty Series, vol. 1042, p. 17; this convention entered into effect on 21 May 1977 in France.
23 As part of the Global Forum for Road Traffic Safety, a group of experts was entrusted with the task of drafting a new legal instrument on the use of automated vehicles in road traffic which should complement the Road Traffic Conventions of 1949 and 1968.
24 L. Teresi, M.-A. Rakotovahiny, S. Jambort, afore. Art., No. 5, p. 162.
25 These three regulations were accepted by European Union law (OJEU, 9 March 2021, L.802).
26 ECE/TRANS/343. This regulation is accompanied by a proposal for documents interpreting the regulation, which is intended to harmonize the tests and their assessment by the aforementioned authorities (UN No. 155: ECE/TRANS/WP.29/2021/59).
27 ECE/TRANS/WP.29/2020/80. In order to harmonize the tests between the different technical services and the competent authorities, the regulation is also accompanied by an interpretation document (see ECE/TRANS/WP.29/2021/60).
28 UN, Reg. No. 157 stating the uniform provisions concerning the approval of vehicles with regards to their Automated Lane Keeping Systems: ECE/TRANS/WP.29/2020/81.
29 Automated Lane Keeping System.
30 Explanatory Memorandum to the French Pacte Act of 11 April 2019.
31 Decree No. 2018-211 of 28 March 2018 on the experimentation of vehicles with driving delegation on public roads provided various details on the terms of the experimentation.
32 The provisions on criminal law nevertheless raise issues, see S. Jambort, L’encadrement juridique de l’expérimentation des véhicules à délégation de conduite par la loi PACTE (The legal framework with regards to experimenting vehicles with driving delegation under the French PACTE Act).
33 Moreover, the French PACTE Act does not refer to automated vehicles but to vehicles with driving delegation.
34 In this respect, L. Teresi, M.-A. Rakotovahiny, S. Jambort, afore. Art., spec. No. 11 and seq., p. 165.
35 Finally, it is worth noting Decree No. 2020-1495 of 2 December 2020 amending Decree No. 2018-211 of 28 March 2018 on the experimentation of vehicles with driving delegation on public roads, the purpose of which is to determine the conditions for issuing and implementing authorization for the circulation of vehicles with driving delegation for experimental purposes.
36 See Decree No. 2021-873 of 29 June 2021 implementing Ordinance No. 2021-443 of 14 April 2021 on the criminal liability regime applicable in the event of the circulation of a vehicle with driving delegation and its terms and conditions of use.
37 V. infra No. 38.
38 S. Detraz, De la mauvaise conduite des véhicules autonomes en droit pénal, À propos de l’ordonnance n° 2021-443 du 14 avril 2021 relative au régime de responsabilité pénale applicable en cas de circulation d’un véhicule à délégation de conduite et à ses conditions d’utilisation (On the mismanagement of automated vehicles in criminal law, As regards the Ordinance No. 2021-443 of 14 April 2021 on the criminal liability regime applicable in the event of the circulation of a vehicle with driving delegation and its terms and conditions of use), D. 2021, p. 1039.
39 On the applicability of the French Badinter Act of 5 July 1985, see L. Teresi, M.-A. Rakotovahiny, S. Jambort, afore. Art., No. 11, p. 165.
40 Associations of elected representatives, environmental associations, organizations representing the professionals of the sectors involved, in particular France Véhicules Autonomes representing the industrial ecosystem of automated vehicles, private and public transport, and user associations.
41 Automated and Electric Vehicles Act, 19 June 2018 – AEV Act 2018 cited by I. Vingiano-Viricel: Véhicules autonomes – ALKS, une approche juridique du système – Libres propos (Automated vehicles – ALKS, a legal approach to the system – Free expression), JCP 2021, p. 346.
42 L. Teresi, Véhicule à délégation de conduite et risque automobile: une lecture juridique (Vehicles with driving delegation and motoring risk: a legal interpretation), LPA, 17 nov. 2020, No. 156k6, p. 6.
43 Implementing Ordinance No. 2021-443 of 14 April 2021 taken in application of Act No. 2019-1428 of 24 December 2019 (known as the French LOM Act).
44 Decree No. 2021-873 of 29 June 2021, Art. 1.
45 In this respect, H. Christodoulou, Quand la responsabilité pénale embarque à bord d’un véhicule à délégation de conduite (When criminal responsibility embarks on board a vehicle with driving delegation, Gaz. Pal., 29 June 2021, No. 422k0, p. 10.
46 French Highway Code, Art. R.311-1 in a chapter that deals with vehicle definition.
47 2nd Civ. Ct. Cass., 27 November 1991, No. 90-11326.
48 2nd Civ. Ct. Cass., 16 January 1991, No. 89-19663 and 4 December 1985, No. 84-13226.
49 I. Vingiano-Viricei, L’amendement à Convention de Vienne : un pas de plus vers la conduite déléguée (Amendment to the Vienna Convention: one more step towards driving delegation), Revue générale du droit des assurances, 2016, No. 5 p. 231.
50 S. Jambort, L. Teresi, M. Rakotovahiny, afore. Art., No. 19.
51 S. Jambort, L’encadrement juridique de l’expérimentation des véhicules à délégation de conduite par la loi PACTE (The legal framework with regards to experimenting vehicles with driving delegation under the French PACTE Act), Edition Affaires, No. 597, 13 June 2019.
52 S. Detraz, afore. Art.
53 C. Crichton, afore. Art.
54 French Highway Code, Art. R.319-1.
55 L. Teresi, M. Rakotovahiny, Enjeux juridiques liés à l’information et la formation des conducteurs des véhicules à délégation de conduite (Legal issues related to the information and training of drivers of vehicles with driving delegation), Communication Commerce électronique No. 4, April 2020, study 8, No. 7.
56 L. Teresi, M. Rakotovahiny, afore. Art., No. 7.
57 C. Castets-Renard, afore. Art.
58 L. Teresi, M. Rakotovahiny, afore. Art., No. 4.
59 UNECE, Global Forum for Road Traffic Safety adopts resolution on the deployment of highly and fully automated vehicles in road traffic, 3 Oct. 2018, ECE/Trans/WP.1/2018/165. This non-binding instrument is intended to coordinate the normative activity of the signatory States in this area.
60 L. Teresi, M. Rakotovahiny, afore. Art., No. 4.
61 L. Teresi, M. Rakotovahiny, afore. Art., No. 4.
62 French Highway Code, Art. L. 319-3.
63 H. Christodoulou, afore. Art.
64 French Highway Code, Art. R. 311-1-1.
65 French Highway Code, Art. L.123-1 of the French Highway Code taken from Ordinance No. 2021-443 of 14 April 2021.
66 H. Christodoulou, afore. Art., p. 11.
67 H. Christodoulou, afore. Art., p. 12.
68 A. Grisoni, J. Mandelenat, Le véhicule autonome : Quel rôle dans la transitition écologique des mobilités ? (Automated vehicles: What role in the ecological transition of mobilities?), La fabrique écologique, March 2021, p. 29.
69 Ibid.
70 UN, Reg. No.157, AKLS, ECE/TRANS/WP.29/2020/81.
71 I. Vingiano-Viricel, Véhicules autonomes – ALKS, une approche juridique du système (Automated vehicles – ALKS, a legal approach to the system), afore. Art.
72 L. Teresi, M. Rakotovahiny, afore. Art., No. 5.
73 Ibid.
74 L. Teresi, M. Rakotovahiny, afore. Art., No. 5.
75 See French Ordinance No. 2021-443 of 14 April 2021 on the criminal liability regime applicable in the event of the circulation of a vehicle with driving delegation and its terms and conditions of use, OJ No. 0089, 15 April 2021, (comm. S. Detraz, afore.) completed by French Decree No. 2021-873, 29 June 2021.
76 It is not, moreover, in itself free of uncertainties, which raises new legal questions see I. Vingiano-Viricel, Véhicules autonomes – AKLS, une approche juridique du système (Automated vehicles – ALKS, a legal approach to the system), afore.
77 V. supra No. 27 and seq.
78 INRIA, Véhicules autonomes et connectés, les défis actuels et les voies de recherche (Automated and connected vehicles, current challenges and avenues for research), White paper, 2018, p. 25.
79 Orjuela et al, Les véhicules autonomes et le risque technologique, d’où vient-on où va-t-on ? (Automated vehicles and technological risk, where did it begin and where is it heading?) RISEO, 2018, p. 19.
80 As regards establishing UN global technical regulations for wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles (E/ECE/TRANS/132 and Corr.1).
81 Vingiano-Viricel, Véhicules autonomes – AKLS, une approche juridique du système (Automated vehicles – ALKS, a legal approach to the system), afore.
82 Vehicles used for the carriage of passengers, no more than eight seats in addition to the driver seat.
83 The systems do not exclude risk, of course. The automated vehicle must as such present “no unacceptable risk”, i.e. not cause “foreseeable and avoidable road accidents”. This principle is further specified for each of the aspects and components of the CAV (World Forum for Harmonization of Vehicle Regulations, 15 April 2019, Framework document on automated/autonomous vehicles, ECE/trans/WP.29/2019/34).
84 And their trailers, and systems, components and separate technical units intended for such vehicles, as regards their general safety and the protection of vehicle occupants and vulnerable road users.
85 Draft regulation of 15 May 2018 on the requirements for the type-approval of motor vehicles […], (COM(2018) 286 final).
86 R. Orjuela et al, afore. Art.
87 Ibid.
88 Proposal for future certification for automated/autonomous driving systems, 19 November 2018, (ECE/Trans/WP.29/GRVA/2019/13).
89 S. Rohfritsch and D. Batho, Rapport d’information sur l’automobile française dans une approche industrielle énergétique et fiscale, (Informative report on the French automobile sector through an industrial, energy and fiscal approach), AN, rep. No. 4109 from 12 October 2016.
90 This replaces an instrument of flexible law which, pending the regulation, had enabled manufacturers’ practices to be harmonized, a minima (UNECE, WP. 29, 26 December 2016, the Cybersecurity Directive, ECE/Trans/WP. 29/GRVA/2017/46).
91 The cybersecurity management system is defined as “a systematic risk-based approach that defines the organization’s processes, responsibilities and governance measures for mitigating cyber threats and protecting vehicles from cyber attacks”.
92 The Recommendation requires the manufacturer to report three types of evidence: 1) how the vehicle manufacturer has taken into account the threats and vulnerabilities in its risk assessment; 2) the measures taken to minimize the risks to an acceptable level (system architecture, system interaction with other systems, mitigation measures); 3) how the manufacturer has implemented the cybersecurity principles defined in the Recommendation can also be used as evidence for type-approval.
93 The data controller has a security obligation: they must take the necessary measures to ensure data is processed in a manner that ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organizational measures (‘integrity and confidentiality’). This objective is fully met by the Regulation, particularly in light of the objectives and threats identified by the French CNIL (French Data Protection Authority) in its “Compliance Pack: connected vehicles and personal data”, October 2017.
94 UN, Reg. No. 156 laying down uniform provisions for the approval of vehicles with regards to software updates and the software update management system, afore.
95 This assessment must determine: 1) whether the proposed update will affect the systems that the update is likely to impact 2) whether it will enable or add functions that were not present or enabled when the vehicle was type-approved or change or disable any other parameters or functions.
Auteurs
Associate Professor-HDR
University of Toulouse 3, LERASS-CDA
Associate Professor-HDR
University of Toulouse 3, LERASS-CDA
Associate Professor
University of Toulouse 3, LERASS
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Regards critiques sur quelques (r)évolutions récentes du droit
Tome 1 : Bilans et Tome 2 : Réformes-Révolutions
Maryvonne Hecquard-Théron et Jacques Krynen (dir.)
2005