Self-driving – so-called autonomous or automated – vehicles are every motorist’s dream. Leaning back and relaxing, watching an exciting film, answering emails or simply chatting with friends via WhatsApp without having to concentrate on the traffic – who wouldn’t want that? In countries such as the USA and China, this has been a reality for some time now. In Switzerland, too, pilot trials have been (and still are) underway to deploy autonomous vehicles in the private and public sectors (e.g. automated shuttle buses in Sion, Geneva and Zug). In view of the rapid progress in technological development, numerous manufacturers are already at an advanced stage of development for self-driving cars, and the market for this is huge. However, even though autonomous driving technology has made considerable progress in recent years, many countries face the challenge of adapting their existing traffic and liability regulations, as these do not (yet) cover the legal requirements for such a new driving style. In Switzerland, too, there has so far been no legal basis for authorising autonomous vehicles on public roads in general. This is now changing.
Definition of automated vehicles
To understand: These are the categories of automated vehicles:
- Level 0: Non-automated
- Level 1: Assisted: Steering such as lane keeping or acceleration/braking such as cruise control
- Level 2: Partially automated: Steering and acceleration/braking such as maintaining distance from the next vehicle including lane keeping
- Level 3: Conditionally automated: The system takes over all driving tasks in certain situations, must recognise problems itself and prompt the driver to take over in good time. Example motorway pilot.
- Level 4: Highly automated: In certain situations, the system takes over all driving tasks and, in the event of problems, must drive the vehicle out of traffic in such a way that it no longer poses an imminent danger. Example of an automated bus route.
- Level 5: Fully automated: Like 4, but the system can control all situations like a human.
From level 3 to 5, systems based on artificial intelligence (AI) will be used on a regular basis.
The following diagram illustrates this:
The following therefore applies: The driver (hereinafter also referred to as “driver”, “person in charge of the vehicle” or “vehicle operator”) must know the specific operating conditions of the vehicle and fulfil the corresponding duties of attention and control. This was already the case in the past. For level 3, simple activities are conceivable that do not require the driver to leave the driving position and do not demand excessive cognitive skills, e.g. eating, reading text messages, etc. However, the driver must be able to take over control of the vehicle in good time. This changes with level 4 vehicles, which must be able to stop themselves in problematic situations in order to minimise the risk of accidents. The UNECE Global Forum for Road Traffic Safety (Global Forum for Road Traffic Safety of the United Nations Economic Commission for Europe) has drawn up a resolution on permitted secondary activities with activated automation systems. The Federal Council approved this at its meeting on 3 November 2021.
Planned changes to road traffic law in Switzerland: current status
Currently, only vehicles up to level 2 are authorised in Switzerland. The amendment to the Road Traffic Act (SVG) and the Ordinance on Automated Driving (AFV) is intended to enable automated driving in Switzerland up to level 4. The Federal Council should now be able to determine the extent to which drivers are relieved of their duties and the extent to which driverless vehicles with an automation system can be authorised if they travel on defined individual routes and are monitored. The Federal Roads Office (FEDRO) is to be given the opportunity to authorise and financially support trials with automated vehicles.
Swiss lawmakers and the Federal Council have now taken a significant step in the direction of autonomous vehicles with the amendment to the Road Traffic Act (RTA) adopted in March 2023 and the draft Ordinance on Automated Driving (AFV). With the explicit authorisation of automated vehicles up to level 4 and the associated regulatory framework, a modern legal regime is being established that focuses on both technological innovations and the safety of road users. The legislator has recognised that the existing regulations, which are geared towards human behaviour and control, are not sufficient to regulate the complex situations associated with automated systems. The new regulations are expected to come into force in the course of 2025. The consultation period for the draft ordinance expired on 2 February 2024. Until then, the cantons, political parties and umbrella organisations of the municipalities, cities and mountain regions as well as umbrella organisations of the business community and other interested parties were able to comment on the planned new regulations. Apparently, the parties involved made active use of this opportunity, especially the logistics and transport industry, which is likely to have a great interest in the swift implementation of the changes (and has already launched corresponding pilot projects). Switzerland would do well to create the legal framework conditions so as not to lose touch with the rapidly advancing developments in Europe and beyond.
Advantages of automated vehicles
Some people will – justifiably – ask themselves why self-driving cars are needed and whether they are not a result of the general hype surrounding digitalisation and artificial intelligence There is no doubt that digitalisation is progressing at a very fast pace, sometimes with more, sometimes with less quality content. However, there are very good reasons to promote this technology of automated and ultimately autonomous driving in particular:
- High road safety: according to statistics, 95% of accidents are caused by human error, and the annual human and economic damage is enormous. Autonomous systems that function and, above all, react “independently” of humans can detect and significantly reduce dangerous human behaviour such as impaired driving, drink driving, speeding and distraction.
- Personal freedom: Mobility on demand (“Mobility as a Service”) can fundamentally improve people’s daily mobility. Older people or people with disabilities who look after themselves but are unable to drive themselves permanently will gain greater independence thanks to autonomous vehicles.
- Economic efficiency: Autonomous vehicles have been proven to reduce costs associated with car accidents (including medical treatment costs) by increasing road safety. The occupants of an autonomous vehicle can devote themselves to more productive activities (completion of work-related tasks).
Liability in the use of automated vehicles
Technological progress for greater safety, efficiency and personal freedom is one thing, but the legal issues in the event that something happens are another. So what about liability in the event of an accident?
International regulations
International road traffic law, in particular the Vienna Convention on Road Traffic (in force for Switzerland since 11 December 1992, in the current version of 15 July 2022), taking into account the UN/ECE regulations of the Economic Commission for Europe, stipulates that a driver must be able to control the vehicle at all times. In Switzerland, this is regulated in the current version of Art. 31 Para. 1 SVG. In connection with the further development of driver assistance systems (e.g. parking aids, electronic stability programmes (ESP), front collision avoidance, etc.), the Vienna Convention was revised in March 2016 and clarified that a vehicle is still considered to be under control when an automated driver assistance system performs driving manoeuvres if the system can be overridden or switched off by a driver. This means that vehicles with automated systems can, in principle, be authorised and used across borders. However, a driver in the vehicle is still a prerequisite and this does not yet mean that the driver is generally relieved of their duties and responsibility for complying with road traffic regulations.
Liability categorisation of automated driving under Swiss law
Liability under road traffic law
The core issue in connection with the authorisation of self-driving vehicles revolves around liability in the event of an accident. As leges specialis, the liability provisions of the SVG take precedence over the general provisions of the ZGB and OR if they deviate from their regulations. According to the existing legal situation, the owner of a vehicle is liable for damage caused by the operation of his vehicle (Art. 58 SVG). This is a so-called strict causal liability. The objection that the owner is not at fault because he did not provoke or cause the event that caused the accident is just as ineffective as the argument that he was not driving the vehicle. The legislator has ensured de lege lata with an insurance obligation in Art. 63 SVG that injured parties have a direct right of action against the insurer in order to enforce their rights. As insurers naturally have no interest in unconditionally assuming the full amount of the damage, it is common practice for insurers to examine a recourse claim against the driver of the vehicle in most cases and to enforce it in the event of fault.
The registration of automated vehicles does not change this, on the contrary. Because the liability of a keeper is not linked to the driver, but to the status of keeper, it is not legally decisive whether an automated system (i.e. a computer) or a human driver was driving the vehicle at the time of the injury (accident). This liability regime is explicitly retained in the amendment to the Road Traffic Act (SVG) and the Ordinance on Automated Driving (AFV) adopted by Parliament. It is true that the person driving the vehicle is not liable if the vehicle system has temporarily taken over the driving task independently. However, if the person in charge of the vehicle does not take over the driving task after the system has requested them to do so or if obvious defects in the system are apparent, they are fully liable under the previous regulations (possibility of recourse). In practice, this means that drivers of autonomous vehicles must familiarise themselves in detail with the technical conditions. This is confirmed by Art. 22 Para. 2 of the Ordinance on Automated Driving (AVF), according to which the driver “ must remain ready to resume control of the vehicle himself at any time“. Art. 44 AFV contains penalties in this regard. The catalogue of fines is detailed and comprehensive. Here is an example that many people may not be aware of: Anyone who deliberately activates an automated parking system even though there are people or animals in the vehicle will be fined. It is therefore not possible to park the car independently while the dog is still in its cage in the boot. Therefore: “Ignorance is no defence against punishment!”.
Liability under product liability law
In the case of automated vehicles that are controlled by software, however, the following must also be taken into account: Depending on the degree of automation, the obligations of the driver, who is liable in the event of a culpable breach of duty, are relaxed depending on the degree of automation of the vehicle. The new Art. 25b SVG regulates the conditions under which and the extent to which the driver of a vehicle with an automated system is released from his general duty of care under the Road Traffic Act. With the new Ordinance on Automated Driving, the legislator has concretised this. Art. 22 of the draft ordinance specifies when the driver “may release the steering device in accordance with the manufacturer’s instructions and leave the operation of the vehicle to the automation system“. This only becomes concrete at level 3, in particular when the automation system asks the driver to take over the driving task again or a malfunction occurs. However, this becomes problematic if an accident has only occurred because the system has been programmed incorrectly or is based on a faulty code and the driver could neither recognise this nor intervene because, for example, there was no request to take over the driving task. Liability therefore shifts to a third party – the manufacturer. According to the Product Liability Act (PrHG), the manufacturer is liable for the damage if a defective product leads to a person being killed or injured in accordance with Art. 1 PrHG. The manufacturer is also liable for an item that is damaged or destroyed, but not for the damage to the defective product itself. In the case of self-driving cars, the control software could be considered such a product. Faulty algorithms, insufficiently tested systems or unexpected software errors could therefore lead to liability on the part of the manufacturer. Product liability is also a strict causal liability and has the clear advantage for an injured party that they do not have to prove fault on the part of the manufacturer. However, this does not exclude the possibility that product characteristics, production defects and safety expectations of the product may become relevant in the event of a dispute.
Responsibility for software errors or the use of artificial intelligence in automated vehicles is a new field in product liability. Special features of robotics and artificial intelligence are not fully covered. The question arises as to when a software error or AI-controlled systems can be categorised as a product defect within the meaning of the PrHG. While traditional product liability applies to physical defects, in the case of automated vehicles the focus could be on the correct implementation and safety of the control software. A software error that leads to an accident could be considered a production defect if it can be proven that the error could have been avoided or is due to inadequate safety precautions. The key question therefore appears to be what conditions must be met in order to achieve the desired relief for the driver while using the automated system, what level of safety the vehicle must achieve and what requirements must be placed on the corresponding evidence. This is a challenge for the manufacturers, which will certainly not be an easy task.
Conclusion and outlook: Despite automated control, the owner of the vehicle remains in a central role after the revision of the law and continues to be liable regardless of fault in accordance with Art. 58 SVG. He also remains responsible for the operation of the self-driving vehicle, even if control of the vehicle is in the hands of an automated system. Detailed knowledge of how the automated system works is essential. However, in the event of an accident with autonomous driving, the owner may be able to assert a recourse claim against the manufacturer or the developer of the autonomous systems if a fault in the technical system is proven. This does not completely replace the owner’s liability, but extends it to include other possible liable parties, particularly in the context of product liability. In practice, however, this is likely to lead to complex liability relationships, which will also be required by the courts.
Sources
- Federal Roads Office FEDRO, The road to automated driving, blog post from 19.10.2023
- UNECE World Road Safety Forum
- Regulations of the Economic Commission for Europe
- Vienna Convention on Road Traffic, as of 2 October 2024
- Press release from the Federal Roads Office (Adaptation of the Vienna Convention on Road Traffic)
- Chronology of the Road Traffic Act
- Draft of the Ordinance on Automated Driving (AVF)