German law for autonomous driving at a tipping point

The draft law on autonomous driving proposed by the German Federal Ministry of Transport and Digital Infrastructure seeks to make Germany a pioneer of binding regulations on autonomous driving. It is intended to create a legal framework that enables fully automated motor vehicles (level 4) to be driven in regular operation in defined areas in public road traffic. According to the Federal Ministry of Transport, the law intends to cover the following areas, among others:

• Technical requirements for the construction, condition and equipment of motor vehicles with autonomous driving functions;
• Examination and procedure for the granting of an operating permit for motor vehicles with autonomous driving functions by the Federal Motor Transport Authority (Kraftfahrtbundesamt);
• Obligations and liability of persons involved in the operation of motor vehicles with autonomous driving functions;
• Data processing during the operation of motor vehicles with autonomous driving functions;
• Enabling the (subsequent) activation of automated and autonomous driving functions of already type-approved motor vehicles ("dormant functions");
• Adaption and creation of uniform regulations to enable the testing of automated and autonomous motor vehicles.

While the Ministry of Transport emphasized that the law will come into force in the current legislative period in its answers to a questionnaire of the liberal democratic party (FDP), the fierce opposition of the Ministry of Justice to parts of the law raises doubts that the original schedule can be kept. The law has been in departmental consultation (Ressortabstimmung) since last October - so far without any apparent consensus.

According to press reports, the Federal Ministry of Justice’s criticism is particularly focused on the draft provisions on data transfer, voicing concerns on the provisions on data transmission according to which data stored by the motor vehicle, such as position and route, will be transmitted to Germany’s domestic intelligence service, the Bundesamt für Verfassungsschutz or the Federal Criminal Police Office (Bundeskriminalamt) upon request by the Federal Motor Transport Authority. The Federal Ministry of Justice is concerned that the provisions might contradict German constitutional requirements according to which the transmission of data must be suitable, necessary and appropriate to achieve a legitimate regulatory purpose.

The planned simultaneous amendments to the Public Transport Act (Personenbeförderungsgesetz) are also highly controversial. The amendments aim at liberalising the market for transportation services to allow operation of diverse mobility services. At the same time, all local transport companies are to release the data they collect (i.e. routes, tariff structures, prices, but also real-time data such as disruptions, delays and the number of passengers). In this respect, the Ministry of Justice suggests a “mobility data law” (Mobilitätsdatengesetz) which, for example, could provide for the use of “safe” data management systems recognised according to legal criteria.

A third point of criticism is that the draft law would not consider the ethics committee's rules for connected and automated driving. This applies, for example, to the rule that in unavoidable accident situations any qualification according to personal characteristics is prohibited or that those involved in the generation of mobility risks must not sacrifice bystanders.

Most recently, North Rhine-Westphalia's Transport Minister Hendrik Wüst intervened in the discussion, criticising delays and demanding that the particularly contentious data protection issues be excluded from the draft law.

Despite the current disputes between the ministries, the draft law is listed on the cabinet schedule for 10 February 2021. This does not necessarily mean that the points in dispute have been resolved and that the law will actually be passed on that day. The massive criticism from the Federal Ministry of Justice rather speaks against an adoption in mid-February. However, the entry in the cabinet schedule suggests that the law will be pursued vigorously and that it may be passed in this legislative period, though perhaps not with its current scope.