The Law Applicable to Autonomous Cars Driving in France

Ordinance No. 2016-1057, 3 August 2016 on the experimentation of self-driving vehicles on public roads.

Decree No. 2018-211, 28 March 2018 on the experimentation of vehicles with delegated driving on public roads. See the order of 17 April 2018 on the experimentation of vehicles with driver delegation on public roads and the order of 26 May 2021 amending the order of 17 April 2018.

On this text, see infra, n°12. The authorisation for experimentation may allow this “driver” to be physically outside the vehicle. He must then be able to take the control of the vehicle back at any time.

In particular, in the event of an emergency or when the conditions of use of the vehicle defined for the experiment are no longer met.

Decree No. 2020-1495, 2 December 2020, amending Decree No. 2018-211 of the 28th March 2018 on the experimentation of vehicles with delegated driving on public roads.

V. L. Andreu et al., Des voitures autonomes, Une offre de loi, Dalloz 2018, No. 00.06: “The legislation relating to experiments remains insufficient, however. It is not able to respond to the paradigm shift brought about by the introduction of autonomous cars. Until today, the cardinal principle in this area remains that of the prevalence of the human in the regulation of road behaviour. Humans are civilly liable for accidents involving the vehicle of which they are the driver or guardian. Humans are criminally responsible for offences committed with their vehicles. Humans are accountable to their insurers for accidents in which they have participated. In other words, the human being is master on board. In a world where the human being is increasingly relegated after the machine, these principles cannot continue to apply. As the European Parliament pointed out in a recent resolution, it must be considered that “the more autonomous a robot is, the less it can be considered as a simple tool controlled by other actors (such as the manufacturer, the operator, the owner, the user...); that in this respect the question arises whether the ordinary rules [...] are sufficient or whether new principles and rules are needed to clarify the legal responsibility of the various actors relating to the acts or inactions of a robot that cannot be attributed to a particular human actor, and to determine whether the robot’s acts or inactions that caused damage could have been avoided. Applied to autonomous cars, this question suggests an important evolution in the rules applicable to vehicles to take account of their march towards autonomy.

It is not clear whether there is a causal link between these texts and the report (it is more likely to be a simple correlation).

Explanatory memorandum.

Article 31 of the law.

Law No. 2019-1428 of the 24th of December 2019 on the orientation of mobility.

Decree No. 2021-873 of 29 June 2021 implementing Ordinance No. 2021-443 of 14 April 2021

It is a “motor vehicle of category M, N, L, T or C, as defined in 1, 2, 4 and 5.1, or urban shuttle as defined in 6.13, equipped with an automated driving system”. From a terminological point of view, we note the shift in vocabulary between the law as passed - which does indeed mention the “autonomous vehicle”—and the ordinance and decree—which prefer the periphrase “vehicle with delegated driving” or the expression “automated vehicle”. These differences reflect an existing opposition between the authors. In favour of the term “autonomous car”, see L. Andreu et al., op. cit., No. 00.01, note 2. In favour of the periphrase, see I. Vingiano-Viricel, op. cit., n° 2.

Our proposal, however, was somewhat different and less complex. We proposed to distinguish between the genus—autonomous vehicle—and its species, among which was isolated the highly autonomous vehicle. Hence the proposal to add a 3° in Article L. 110-1 of the Highway Code stating: “The term ‘autonomous vehicle’ means any motor vehicle equipped with autonomous driving devices. The vehicle is highly autonomous when the on-board technology allows the user not to constantly monitor the behaviour of the vehicle. Autonomous driving devices are those that govern the speed or trajectory of the vehicle”. The definitions in the decree are different—and cryptic. For the delegated driving vehicle, see supra, note 20. For the partially automated vehicle: “a vehicle equipped with an automated driving system exercising dynamic control of the vehicle in a particular functional design domain, which must make a request for recovery in order to respond to certain traffic hazards or failures during a manoeuvre in its functional design domain”. For the highly automated vehicle: “a vehicle equipped with an automated driving system exercising dynamic control of a vehicle in a particular functional design domain, capable of responding to any traffic hazard or failure, without exercising a handover request during a manoeuvre within its functional design domain”. For the fully automated vehicle: “a vehicle equipped with an automated driving system exercising dynamic control of a vehicle, capable of responding to any traffic hazard or failure, without exercising a demand for recovery during a manoeuvre”.

In particular, the vehicle user should be able to take control of the vehicle back if the driving delegation system is encountering difficulties or if it system requests the user to do so.

Article 12, III, of the experimental decree.

L. Andreu et al., op. cit. Hence the proposal to create an Article R. 221-8-1 in the Highway Code (inspired by Article R. 221-8) which states that “The various categories of driving licence set out in the preceding articles allow the driving of an autonomous vehicle on condition that the holder has undergone practical training provided by an establishment or association approved under Article L. 213-1 or L. 213-7.

L. Andreu et al., op. cit. No. 01.124, which added that “For future drivers, this certificate could be obtained at the same time as the standard licence. For drivers who already hold a licence, they should obtain this certificate by following the training course”.

A.-M. Idrac, Report, op. cit. p. 39, which provided for simple “information for drivers on the type of technique and how it works” in the form of “written manuals” or “explanatory videos” - a proposal which we considered insufficient: see L. Andreu et al., op. et loc. cit.

It must be said that the Mobility Orientation Law was not sufficiently welcoming. Article 31 stated: “It may be provided for in this respect to impose the provision of information or appropriate training, prior to the provision of vehicles with driver delegation, during the sale or hire of such vehicles”. Although the text seems to leave room for manoeuvre by referring to “appropriate information or training”, the text seemed to limit either to cases where a sale or hire takes place. However, the logic of pre-driving training is to be a necessary precondition for the use of these vehicles, not their purchase or hire.

In particular, the accident reported in 2016 by the press in which the driver of the Tesla vehicle involved was watching a movie at the time of accident.

There is no legal definition of a driver, but it seems in case law that the status of driver presupposes that the person concerned retains some control of the vehicle. Thus, a person who, in order to take a nap, “leaves the controls of his vehicle, of which he has therefore not retained control”, is no longer a driver within the meaning of the Act of 5 July 1985: Cass. Crim., 31 May 2016, 15-83625. Similarly, a student of a driving school who is under the orders of his driving instructor does not have sufficient control of the vehicle to be considered as a driver: Cass. 2nd civ., 29 June 2000, No. 98-1.848. Conversely, a person who is behind the wheel of a vehicle towed “with the aid of a short and rigid iron bar”, but who “retains a certain amount of control in driving the towed vehicle” (action on the steering wheel) remains a driver: Cass. 2nd civ., 14 Jan. 1987, No. 85-14,655. Comp. Cass. 2nd civ. 27 November 1991, 90-11,326. This led us to the following analysis: “If we consider the case of a vehicle whose autonomy remains low, we can understand that the person who retains sufficient control of the vehicle remains the driver, even though he would have activated the autonomy device with which his car is equipped […] Conversely, when the autonomy device is sufficiently strong to totally or partially relieve the user of driving the vehicle, the person who activates it ceases to be the driver. The person who activates an autonomy device may thus be in the same situation as a student in a driving school, when the instructor takes full control of the vehicle - holding the steering wheel and operating not only the pedals but also the gearbox - to show the student how to put the car in first gear and drive. While behind the wheel, the student is not a driver. A person who activates a driving device in an autonomous vehicle would no longer be a driver. Between these two extremes, the question arises as to when a driver who activates an autonomous device ceases to be a driver. If one applies the criterion of control of the vehicle, it should probably be accepted that the loss of driver status implies a device that ensures a sufficiently high degree of autonomy of the car, to the point of allowing the user of the vehicle to cease to supervise it permanently. Below that point, the person concerned retains the status of driver within the meaning of the various texts governing motorised land vehicles”. Comp, I. Vingiano-Viricel and D. Noguero, Intelligence artificielle et véhicules autonomes, in Droit de l’intelligence artificielle, Dir. A. Bensamoun and G. Loiseau, LGDJ 2019, n° 204: “as long as the user has the duty to keep control of the vehicle, even if it is a power to be used occasionally (action on the pedals and/or the steering wheel), he also remains a driver within the meaning of the law”. In the same article, these two authors refer to the user of a level 5 autonomous vehicle as a “driver”—while also referring to him as a “passive passenger” (see No. 166) and specifying that “level 5 does not automatically eliminate the presence of a driver who could always take control of the vehicle back and drive it in the conventional way if he so wishes”. See also infra, notes 41and 80.

I. Vingiano, What legal future for the “driver” of an “intelligent car”?, n° 15. Comp. I. Vingiano-Viricel and D. Noguero, mentioned supra note 36. See also infra, note 80.

Art. 12, I, of the experimental decree.

Art. 12, II, of the experimental decree.

Art. 12, II, of the experimental decree.

Art. L. 123-1.

See the Criminal Liability Ordinance, which states that “The driver must be constantly in a position to respond to a request to take control of the automated driving system “(Article L. 123-1 of the Highway Code): as long as this “takeover” does not happen, it is therefore the automated driving system that has “control” of the vehicle.

Article 11.

Article 11.

If an accident occurs, the action could be brought well after the one-year period provided for in the text, since the limitation period for liability actions is in principle 5 years (Article 2224 of the Civil Code) and can be 10 years in the case of personal injury (Article 2226 of the Civil Code).

Article L. 1514-4 of the Transport Code.

Article L. 1514-5 of the Transport Code.

See also Articles L. 1514-6 et seq. of the Transport Code, which allow the manufacturer to access certain vehicle data.

Article L. 1514-1 of the Transport Code.

Article L. 1514-2 of the Transport Code.

Article L. 1514-3 of the Transport Code.

Hence the proposal to enshrine in the Highway Code an article R. 412-18 (inspired by the current article R. 413-5, concerning the sticker for learner drivers): “I. - Any driver of a highly autonomous vehicle must, while driving, visibly affix to the rear of his vehicle a distinctive sign, the conditions of use and model of which are set by joint order of the Minister of the Interior and the Minister of Transport. This signalling duty may be fulfilled by the use of a luminous device installed on the vehicle under the conditions laid down by joint order of the Minister for the Interior and the Minister for Transport. (L. Andreu et al., op. cit., No. 01.112). See I. Vingiano-Viricel and D. Noguero, art. prev. mentioned, note 81, who stress the risk of a “destabilising surprise” for other drivers.

Article 10, paragraph 2.

Targeting the holder of the registration certificate facilitates the enforcement of the offences concerned by attributing them to the holder of the registration certificate, without the need to establish the identity of the driver.

It is regrettable that these texts do not more clearly exclude the application of Articles L. 121-2 and L. 121-3 of the Highway Code—which make the holder of the registration certificate liable in certain circumstances. In practice, this omission should not have any impact, since the manufacturer who should be considered as the “true perpetrator of the offence” within the meaning of Articles L. 121-2 and L. 121-3 mentioned above (these texts allow the holder of the registration certificate not to be liable for the financial consequences of the offence committed when he can designate this “true perpetrator”).

Article 21-1.

Article L. 123-1, paragraph 3, of the Highway Code.

Moreover, there seems to be no need for a special text to govern this hypothesis, in which the person concerned becomes an ordinary driver again.

See I. Vingiano-Viricel, op. cit. No. 2, which, in a cryptic footnote, seems to contradict the idea that highly or fully autonomous cars are driverless. However, the author does not consider in this No. the case where criminal law is involved. Comp. in the same work, nos. 118 and 132, where the author considers that the criminal law texts concerning “drivers” can be attributed to the person concerned. See also I. Vingiano-Viricel and D. Noguero, art. Prev. mentioned, no. 166, supra note 36.

L. Andreu, op. cit. under No. 04.117, with the proposal for an Article L. 110-1 3° of the Highway Code providing: “The person who activates the autonomous driving system of a land motor vehicle is deemed to be the driver”.

In France, criminal law distinguishes the “contravention”, the “délit” and the “crime”. There is no prison sentence for a “contravention”. For a “délit”, there could be a prison sentence for a period which may not exceed 10 years. For the “crime”, the prison sentence could be longer.

Art. L. 123-2 of the Highway Code.

We therefore proposed the following text: “The manufacturer of an autonomous vehicle cannot be held responsible for road offenses by the vehicle. He is, however, liable if he knowingly programmed the vehicle to produce such a breach”: L. Andreu et al., op. cit., n° 03.122.

This is more easy to understand for the experimentation texts, which involve a small number of vehicles and require extensive monitoring by the licence holder. This is not the case for the Criminal Liability Ordinance, which will apply to a larger number of vehicles, used in normal traffic conditions.

L. Andreu et al., op. cit., 03.64, and the proposal for an Article R. 412-6 III of the Highway Code providing in particular that “The user of an [autonomous vehicle] is required to exercise caution in the use of the autonomous driving device. In particular, he is required to take control of the vehicle back when he is or should have been aware of the machine’s inadequacy to ensure compliance with traffic rules. This inadequacy may be the result of a warning from the vehicle itself.

Art. L. 123-1 of the Highway Code.

Art. 221-6 of the Penal Code.

Art. 221-6-1 of the Criminal Code.

See supra, n° 14 and 28. Contra, I. Vingiano-Viricel, op. cit. No. 118, for whom “the driver, a natural person, is criminally liable for damage caused to victims even in delegated driving mode” (see also No. 132). The statement probably stems from the author’s analysis according to which the user of an autonomous vehicle would always be considered as a driver, even when not driving: see supra, notes 36, 41 and 80.

To avoid further confusing the concepts at work, the legislator could also have provided for an aggravating circumstance specific to the vehicle manufacturer rather than equating the manufacturer with the driver.

Thus, when the hijacking of the vehicle results in death, one might naturally consider prosecuting the hijacker for homicide.

They are provided for in Articles 323-1 et seq. of the Criminal Code.

Article 323-1 of the Penal Code, with aggravated penalties when it results in the “deletion or modification of data contained in the system” or “an alteration of the functioning of this system”.

Article 323-2 of the Criminal Code.

Article 323-3 of the Criminal Code.

The only difficulty relates to the case where the intrusion is part of a terrorist undertaking. Article 421-1 of the Penal Code lists the offences for which a terrorist motive may lead to an aggravated sentence, referring somewhat vaguely to “computer-related offences defined by Book III of the present Code”. As has been written, “The legislator takes certain liberties in this area in relation to the titles that are supposed to group these offences. The Penal Code does not contain any division that falls under such a formula: there are no “computer-related offences”, but “offences against automated data processing systems”, the subject of Chapter III of Title II, which includes Articles 323-1 to 323-8. The reference is therefore not perfectly exhaustive, even if its scope, apparently well understood, does not allow one to speculate on a dead-end ambiguity” (Y. Mayaud, Terrorisme, Infractions, Comportements, Répertoire de droit pénal et de procédure pénale, January 2020).

Art. L. 1514-8 of the Transport Code.

In this sense, L. Andreu et al. No. 02.01; M. Clement-Fontaine, Les véhicules autonomes dans l’œil du cyclone des réformes de la robotique, en matière de données personnelles et de responsabilité civile, in M. BEHAR-Touchais, Les objets connectés, IRJS, 2018, t. 96, p. 115-127; P. Pierre, Quand E. Musk rencontrera R. Badinter, ou le pilotage automatique des véhicules automobiles à l’épreuve de l’indemnisation hexagonale des victimes d’accidents de la circulation, RLDC 2016, n° 141, p. 33. The opposite analysis is regularly defended in colloquiums by representatives of the French insurance federation.

Law No. 85-677 of 5 July 1985 aiming to improve the situation of victims of traffic accidents and accelerating compensation procedures.

The producer is also liable for damage caused by a defect in his product on the basis of Art. 1245 et seq. of the Civil Code, which is not detailed here.

Article 1.

Lexique des termes juridiques, Dir. S. Guinchard and T. Debard, Dalloz 2017.

Cass. 2nd civ., 5 March 2001, n° 99-16852.

Cass. 2nd civ., 23 Jan. 2003, no. 00-21676; 22 Jan. 2004, no. 01-11665.

Cass. 2nd civ., 11 Dec. 2003, n° 00-20,921.

L. Andreu et al., op. cit. No. 02.81; I. Vingiano-Viricel, op. cit., n° 50.

He may of course act against him on the basis of Article 1240 of the Civil Code, which more generally provides for liability for fault.

L. Andreu et al., op. cit., No. 02.90: “while damages resulting from serious personal injury are fully compensated by the FGTI, limits apply to minor bodily injuries and property damage: coverage is only provided if the victim’s income is below a certain threshold and, in any event, there is a ceiling”.

Contra, I. Vingiano-Viricel, op. cit. Which observes, with regard to the risk of terrorist attacks by hacking into vehicles, that “this situation is unfortunately not new and the treatment of its consequences is already taken into account by the law”.

Article 2.

Article 3, which provides some further clarification.

Cass. 1st Civ. 4 November 1986, 85-11972.

On the attribution of driver status, see supra, n° 10. On the attribution of custody, see the long developments of I. Vingiano-Viricel, op. cit., n° 58. Comp. L. Andreu et al., op. cit., n° 02.101. All of this is obviously subject to the stipulations of the insurance contract, which may well provide for compensation of victims beyond the legal hypotheses.

V. L. Andreu et al., op. cit. No. 02.101, who consider that “the realisation of such a risk [i.e. the risk of “impossible compensation of the victim”] seems very unlikely in the light of the case law, which has a very flexible, not to say resolutely audacious, definition of custody where compensation issues arise”. This means that, when the question will arises, the case law will be able to find a guardian of the vehicle to allow the victim to be compensated. See I. Vingiano, art. prev. mentioned, n° 14 and I. Vingiano-Viricel, op. cit. No. 58: the author proposes to apply the distinction between custody of the structure and custody of the behaviour to the autonomous vehicle. Contra, L. Andreu et al., op. cit., n° 02.171. See also. D. Noguéro, Loi Badinter, voiture autonome, robot, évolution du risque et information au regard de la protection des assurés, in dossier spécial Comprendre et anticiper la révolution numérique en assurance (Special file on understanding and anticipating the digital revolution in insurance), Wolters Kluwer France, Actualités du droit, Tech&Droit, Oct. 13, 2017 (online) and Revue Lamy Droit de l’Immatériel (RLDI) Nov. 2017, No. 142: “The obligation to pay the debt on the basis of the Badinter [1985] Act is hardly in doubt, one might think”.

In particular, one may wonder whether the user of the vehicle or the manufacturer or even whoever designed all or part of the autonomous driving system is likely to be liable as a “driver” or “guardian” of the vehicle within the meaning of the 1985 law - in particular in the case where the vehicle is not insured. For the possible analysis of the manufacturer as driver or guardian, see I. Vingiano-Viricel, op. cit. n° 58 and 69. A similar question arises with regard to “professionals in the repair, sale and inspection of motor vehicles”, whose liability is not covered by motor vehicle insurance (Article L. 211-1 of the Insurance Code).

Article 4.

L. Andreu et al., op. cit., n° 02.153. See I. Vingiano-Viricel, op. cit. n° 60, who questions the relevance of actual law.