After months of delay, the German ordinance on regulating the operation of motor vehicles with automated and autonomous driving functions (Verordnung zur Regelung des Betriebs von Kraftfahrzeugen mit automatisierter und autonomer Fahrfunktion und zur Änderung straßenverkehrsrechtlicher Vorschriften – AFGBV - “the Ordinance”) has finally entered into force on 1 July 2022 after the Federal Council (Bundesrat) has approved it in its 1021^st session on Friday, 20 May 2022 under the condition that certain amendments are incorporated.  Germany’s road traffic laws opened up to the use of autonomous vehicles up to SAE/ISO level 4 (“AV(s)”) last year through the Act on Autonomous Driving (Gesetz zur Änderung des Straßenverkehrsgesetzes und des Pflichtversicherungsgesetzes – Gesetz zum autonomen Fahren – “the Act”), which entered into force on 28 July 2021.  The Ordinance supplements the Act and, among other, provides for the necessary technical requirements for AVs, the procedure for obtaining the operating permit (Betriebserlaubnis) of the AV, and the approval of the specified operating area (festgelegter Betriebsbereich). 

Key provisions of the Ordinance

Three Step Approval Approach

In order to be operated on public roads, the AV is subject to a three-stage approval process specified in the Ordinance:

• AV approval, including the necessary technical requirements

Operation of an AV requires that the manufacturer obtains an operating permit from the competent authority, the Federal Motor Transport Authority (Kraftfahrtbundesamt – “KBA”), which is also responsible for market surveillance.  The Ordinance sets out the procedural framework for the permit, including the technical requirements for the AV which are detailed in Annex I.  The application of the manufacturer requires detailed documentation, such as a declaration concerning compliance with the technical requirements and the provision of a safety concept concerning functional safety, information technology and general road traffic safety.  The manufacturer further needs to document test scenarios in a catalogue covering test parameters and environmental influences on the vehicle that may arise during operation.

• Approval of the specified operating area

It is then up to the owner (which may also be the manufacturer) to define the operating area of the AV (e.g., highways).  The operating area needs to be approved by the competent authority for the specific operating area (which may be a Federal or regional authority).  The application requires a detailed description by the owner, including an illustration of a cartographically delimited area, the purpose of the operation and the associated operating conditions.  The competent authority then verifies the suitability of the specific operating area.  In the course of the operation, the owner then must ensure that, based on the repair and maintenance information provided by the manufacturer, the vehicle systems for the active and passive safety of the AV are regularly checked and an extended departure check (erweiterte Abfahrkontrolle) is completed.

• Registration

Similar to conventional vehicles, the AV must be registered for public road operation with the additional requirement that the registration certificate identifies the AV’s specified operating area.

Technical Supervisor (Technische Aufsicht)

The Ordinance not only details the obligations of manufacturers and owners of AVs, but further specifies the role of, and requirements for, the so-called technical supervisor.  The technical supervisor is a natural person, able to deactivate the autonomous driving function during AV operation, release alternative driving maneuvers in the event of difficulties, and alert passengers in the event that the AV is set to a minimal risk condition. 

Data storage

The AV needs to be equipped with a digital data storage system, which records, stores and uses the AV’s data on an event basis (e.g. accidents) and during operation for the purpose of enhancing road safety.  KBA and other competent authorities may use the data only for the purpose of verifying compliance with the conditions of the respective approval and monitoring obligations associated with the approval.  The requirements for data storage systems are specified in the annexes of the Ordinance.

Testing framework

In the past, manufacturers obtained exemptions from local authorities to test AVs on public roads.  The Ordinance now introduces a uniform procedure for the approval of tests by the KBA in order to simplify, standardize and centralize testing.

"Last Minute" amendments and entry into force

The Federal Council has given its approval to the Ordinance under the condition that certain amendments are incorporated.  These amendments were based on the recommendations of Federal Council committees which examined the draft Ordinance in advance of the 20 May session.  The recommended amendments included the following:

• As the competent authority will not be able to assess the suitability of an operating area for all conceivable cases, unforeseeable circumstances, for example as a result of “force majeure”, shall be disregarded when determining the suitability of operating areas.

• The "extended departure check", which includes a test drive and the inspection of various safety-relevant systems, shall be completed daily before the start of operation (the draft originally required the check before every journey).

• Reduced requirements for the qualification of the technical supervisor (regularly trained person with relevant professional experience, no engineering degree required).

In an accompanying resolution to be considered for future revisions of the Ordinance, the Federal Council, among other, requests that the Federal Government specify the approval of large, cross-municipal / cross-federal-state level operating areas. After the suggested amendments were implemented, the Ordinance was promulgated in the Federal Law Gazette on 30 June 2022 and subsequently entered into force on 01.07.2022.

Next steps (including EU Update)

Now that the national legal framework is ready, it will be exciting to see which industry players will take the next step and put the first SAE/ISO level 4 vehicles into regular operation on German roads. At the same time, there is also a lot of EU activity.  The EU Commission held a public consultation this spring on its proposal for a Commission Implementing Regulation laying down the rules for the application of Regulation (EU) 2019/2144 (“the General Safety Regulation”) of the European Parliament and of the Council as regards uniform procedures and technical specifications for the type-approval of the automated driving system (“ADS”) of “fully automated motor vehicles” (which relates to SAE/ISO level 4) (“the ADS Regulation”) and is set to finally adopt the draft. The ADS Regulation shall harmonize the requirements for EU type-approval of the ADSs of such fully automated vehicles. In its meeting on 05 July 2022, the Technical Committee on Motor Vehicles (“TCMV”) has voted in favour of the ADS Regulation.  Following this, the EU Commission has adopted the ADS Regulation on 5 August 2022 and and it entered into force in mid-September. EU whole-vehicle type-approval of motor vehicles equipped with an ADS approved under the ADS Regulation will, however, for the time being only be possible for limited numbers under the small series type-approval regime of Regulation (EU) 2018/858 (that means max. 1,500 vehicles per model per year). It became clear from the legislative process that the EU Commission intends to remove these quantitative limitations and address EU type-approval of unlimited series as soon as possible, and has already identified a target date of July 2024 for review, which is supported by a wide range of industry players and associations. 

Since the ADS Regulation is now in force, the relationship between the (partially?) harmonised EU type-approval framework and the German AV framework, particularly the Ordinance, will raise interesting legal questions in practice in the future.

Authored by Patrick Ayad and Susanne Schuster.