Legislation paves the way for autonomous driving

While Appollo Go is deploying its robotaxis for large-scale test drives in ten Chinese cities, Renault is developing minibuses for shuttle services at large events and Rimac is building the Verne, the first European car without a steering wheel or pedals. However, we are not racing into the driverless future just yet. Tesla had to answer for accidents in autonomous driving mode in court, while Cruise robotaxis were banned by the authorities in San Francisco – too dangerous for road traffic. The ongoing development of autonomous driving also poses new challenges for legislators. With an amended Road Traffic Act (SVG) and the Ordinance on Automated Driving (AFV) submitted for consultation by the Federal Council in October 2023, Switzerland is moving one step closer to the reality of autonomous vehicles on public roads. The new regulations are due to come into force in the course of 2025. But what exactly do they mean?

The revised SVG and the new AFV create the legal framework for the authorisation and use of autonomous vehicles. The German Association of the Automotive Industry defines six levels of automated driving, from level zero without assistance to level five with full automation. In the lower levels zero to two, the driver must constantly intervene and monitor the vehicle, while in the higher levels three to five, control is increasingly taken over by the automation system, with human intervention no longer required in the highest level. Astra has adopted this definition for Switzerland.

Driver can relinquish control

While the law currently still requires the driver to be in control of the vehicle at all times, the new regulations will enable level three to five automation systems: the driver can thus partially or completely relinquish control of the vehicle in certain situations. According to the new Article 25b SVG, the Federal Council can regulate the conditions under which drivers are released from their duties. According to the AFV now proposed by the Federal Council, in certain cases the driver should only have a monitoring function or - in the case of fully autonomous vehicles - no longer have to exercise direct control at all. Of course, this presupposes that the automation system has received type approval, which requires comprehensive evidence of the functionality of the automation system. Fully autonomous vehicles that do not require a driver may only be permitted on specified routes and must be supervised by an operator.

The current liability regime remains conceptually unchanged. In the event of an accident, the owner of a vehicle is still liable as per Art. 58 SVG, regardless of any fault. However, the obligations of vehicle drivers, who are only liable for a breach of duty if they are at fault, are relaxed depending on the level of automation of the vehicle. In level 3 vehicles, for example, the driver is only obliged to take over control if the system demands it or if a malfunction occurs. At the same time, however, the manufacturer's liability under the Product Liability Act remains in place. Manufacturers could be held liable if a malfunction of the automation system leads to an accident.utonomous driving brings changes for the insurance and automotive industries. Although the owner's liability remains unchanged, in practice, insurers could increasingly seek recourse against the manufacturers of automation systems. This is due to the fact that injured parties will – as before – initially claim against the vehicle owner's liability insurer due to their direct right of action.

The ball is in the industry's court

In the context of recourse, the insurer then attempts to recover the compensation paid out directly to the injured party. As responsibility for driving is increasingly shifting from the driver to the automation system, accidents are likely to raise the question of whether a system error caused the accident and whether the manufacturer, who generally has deep pockets, could be held liable. The manufacturer's liability is therefore likely to become more important.

Complex liability issues are also likely to arise in the future, especially if several parties - owner, driver, manufacturer, operator and insurer - and new technologies are involved. The fact that the Product Liability Act does not fully cover the special features of robotics and artificial intelligence could create additional uncertainties. The EU is already planning to revise the relevant directives, which could also become relevant for Switzerland.

In Switzerland, the legislator has laid the foundations for technical innovations in road traffic; the liability regime is also based on tried and tested principles and does not come up with any surprising changes. The ball is now in the automotive industry's court to develop and bring to market automation systems that can be approved, meet with consumer demand and can be trusted. This is the only way to achieve the actual goals of the innovations, namely to increase road safety, improve traffic flow and prevent liability issues from arising in the first place. If this succeeds, it should ultimately also reduce the burden on insurance companies and premium payers.