PRODUCT | Evolving Products Law and Safety Innovations in the Automotive and Mobility Industry

Introduced in late 2019, the GSR lays out type-approval requirements for motor vehicles, trailers, systems, components and technical units intended for motor vehicles with regard to their general safety as well as the protection of vehicle occupants and vulnerable users, i.e., cyclists, pedestrians, motorcyclists, etc. The GSR is an important building block of the European Commission's 'Vision Zero', i.e., the goal to move as close as possible to zero fatalities and serious injuries in road transport by 2050. In doing so, the GSR stipulates certain technical safety features required in vehicles that are registered or components and separate technical units that are placed on the market from 6 July 2022, 7 July 2024, 7 July 2026 or 7 January 2029 onward.¹

Before compliance or liability risks can be analyzed, automakers and automotive suppliers have to develop a clear understanding on which technical safety features / innovations are required by law. The following list provides an overview of certain important technical safety features/innovations introduced by the GSR. Pursuant to the GSR, vehicles shall be equipped with the following:

Tires that are not properly inflated tend to deteriorate faster, consume more fuel, and are more prone to sudden failures. Against this background and under the GSR, tire pressure monitoring systems (TPMS) have been mandatory for certain light-duty vehicles (i.e., category M1) registered after 5 July 2022 and for certain light-duty vehicles (i.e., category N1) and heavy-duty vehicles (i.e., categories M2, M3, N2, N3, O3, O4) registered after 6 July 2024. The same applies to new production lines of such vehicles after 5 July 2022. 

The requirement for vehicles to be fitted with a TPMS aims at enhanced road safety by reducing the likelihood of tire-related issues that could result in severe accidents. The TPMS evaluates the tire pressure and notifies drivers when there is a loss of tire pressure. Automakers have to ensure that dependable pressure sensors and systems for real-time monitoring are incorporated into their vehicles.

TPMS were already regulated by UNECE R 141 for certain vehicles of category M, N and O. UNECE R 141 was subsequently introduced into the GSR by way of reference. 

Like the ISA, so-called alcohol interlock facilitation has been mandatory for vehicles of categories M and N in new production lines since 6 July 2022 as well as vehicles of categories M and N registered on or rafter 7 July 2024.

According to Art. 3 (4) GSR, this requires "a standardized interface that facilitates the fitting of aftermarket alcohol interlock devices in motor vehicles". It is important to note that while such alcohol interlock installation facilitation helps to simplify the installation of an alcohol interlock device (AID) in vehicles, the AID itself is no requirement of the GSR. However, certain member states might adopt legal acts that make the AID mandatory. In Germany for example, the current legal framework does however not indicate a strong movement towards making the installation of an AID mandatory for passenger and/or commercial vehicles. Other member states such as Belgium or Poland have introduced the installation of an AID as an alternative measure for traffic offenders. Moreover, in other member states it is mandatory to use an AID in certain vehicles, such as governmental vehicles in Sweden or school buses in Finland.

Vehicles of categories M and N that were registered after 6 July 2024 and new production lines of such vehicles after 6 July 2022 must also feature so-called intelligent speed assistance (ISA) systems. The GSR provisions on ISA systems also apply where they are provided as a separate technical unit (STU) that was placed on the market or entered into service after 6 July 2024.

According to Art. 3 (3) GSR, ISA means "a system to aid the driver in maintaining the appropriate speed for the road environment by providing dedicated and appropriate feedback". Through the ISA, drivers shall be made aware that the applicable speed limit is exceeded. The ISA provides information on the speed limit and will either warn the driver or control the speed directly. In doing so, the ISA system works with traffic sign recognition technology (i.e., camera systems and data stored in the navigation system). However, it generally does not prevent the driver from exceeding the speed limit. Furthermore, drivers can (temporarily) switch off the ISA during their journey.

The necessary technology for an ISA system might be faced with ambiguous speed related information due to out-of-date data, missing, vandalized, manipulated or otherwise damaged signs, erroneous sign placement, inclement weather conditions or non-harmonized, complicated and implicit speed restrictions. Therefore, Recital 6 of Delegated Regulation (EU) 2021/1958, which lays down detailed rules regarding ISAs, clarifies that "[…] the underlying principle should be that the driver is always responsible for adhering to the relevant traffic rules and that the ISA system is a best-effort driver assistance system to alert the driver, whenever possible and appropriate".

Still, there might be certain legal risks for automakers and/or suppliers of ISAs as a STU in situations where the ISA system incorrectly processes the information received by its traffic sign recognition technology and therefore suddenly alerts the driver or attempts to limit the speed.

Another safety feature which has been mandatory for vehicles of categories M and N in new production lines since 6 July 2022 as well as vehicles of categories M and N registered after 6 July 2024 is a driver drowsiness and attention warning (DDAW) system. Furthermore, for vehicles of categories M and N in new production lines since 7 July 2024 as well as vehicles of categories M and N registered after 6 July 2026, vehicles must be equipped with an advanced driver distraction warning (ADDW) system.

According to Art. 3 (5) GSR, a DDAW is "a system that assesses the driver’s alertness through vehicle systems analysis and warns the driver if needed". Pursuant to Art. 3 (6) GSR, an ADDW is "a system that helps the driver to continue to pay attention to the traffic situation and that warns the driver when he or she is distracted". Hence, both systems require a certain monitoring of the driver and visual, haptic or auditory warnings where driver fatigue or inattention is detected.

With regard to data protection, Art. 6 (3) GSR clarifies that both DDAW and ADDW systems "shall be designed in such a way that those systems do not continuously record nor retain any data other than what is necessary". Against this background, it is essential for automakers to consider laws such as the General Data Protection Regulation (GDPR) during the development process. Furthermore, DDAW and ADDW systems shall not provide overlapping information as to not confuse the driver.

In addition to these requirements, the GSR mandates several other important safety features/innovations. These include the following:

• Advanced emergency braking systems (AEBS): The GSR generally requires vehicles to be equipped with AEBS, i.e., systems that are able to detect obstacles and vehicles ahead and thus avoid forward collisions. Different application dates apply depending on the vehicle category as well as the exact function of the AEBS.
• Emergency stop signal (ESS): The GSR also requires vehicles to be equipped with an ESS, i.e., a light-signaling function indicating to other road users that the vehicle in front of them is braking heavily or very suddenly slowing down in order to avoid rear-end collisions. In doing so, the GSR refers to UNECE R 48. This feature has been mandatory for vehicles of categories M and N in new production lines since 6 July 2022 as well as vehicles of categories M and N registered after 6 July 2024.
• Emergency lane-keeping system (ELKS): An ELKS assists the driver in keeping a safe position of the vehicle with regard to road borders in case a lane departure occurs and thus collision might be imminent. It is required in vehicles of categories M₁ and N₁ in new production lines since 6 July 2022 as well as vehicles of said categories registered after 6 July 2024.
• Reversing detection: A significant amount of accidents happen while a vehicle is reversing. To avoid these situations, a reversing detection system is mandated by the GSR. In doing so, the GSR refers to UNECE R 158. The system shall make the driver aware of people, animals or other objects at the rear of the vehicle in order to avoid collisions. This feature has been mandatory for vehicles of categories M and N in new production lines since 6 July 2022 as well as vehicles of categories M and N registered after 6 July 2024. Furthermore, the provisions on reversing detection systems are also applicable to STUs.
• Event data recorder (EDR): Furthermore, the GSR also makes it mandatory to have an EDR fitted in the vehicle. An EDR's (only) purpose is the recording and storing of critical crash-related parameters and information shortly before, during and immediately after a collision, i.e., it serves as a vehicle's 'black box'. The aim is to use such data in order to carry out accident research and analysis. Regarding a potential traffic offense, the EDR may generally also be confiscated by the prosecuting authorities. Different application dates apply depending on the vehicle category. The provisions on EDRs are also applicable to STUs.

As safety expectations and possibilities in technology and engineering grow, the GSR is constantly amended, i.e., revised, updated or supplemented, particularly via so-called Delegated Acts and Implementing Acts adopted by the Commission. In doing so, the EU legislators will often refer to UNECE Regulations (UNECE R) that have been adopted by the World Forum for the Harmonization of Vehicle Regulations (WP.29) in the meantime and introduce them into the framework for EU type-approval requirements.

For example, the Commission recently published a new Draft Delegated Regulation that contains updates regarding references to several UNECE R that have been amended by WP.29. Furthermore, the Draft Delegated Regulation would introduce several new UNECE R into the GSR. In particular, the Draft Delegated Regulation suggests that an "E10 System" which assists the driver in performing vehicle dynamic control should comply with UNECE R 171 (if fitted to the vehicle).

UNECE R 171, which is the latest addition to the UNECE R by WP.29, contains provisions on so-called driver control assistance systems (DCAS). DCAS are a subset of advanced driver assistance systems (ADAS). They provide so-called vehicle dynamic control through (sustained) lateral and longitudinal motion-control support. As DCAS shall only support the driver, the responsibility shall still remain with him. Against this background, DCAS are generally treated as a partial automation feature, i.e., SAE Level 2.

Many of the abovementioned safety innovations pave the way for higher levels of automated/autonomous driving. In the automotive and mobility sector, the regulatory framework in general and for automated/autonomous driving in particular is shaped not only by EU legislation but also by national regulations, which play a crucial role in defining the legal landscape in the single member states of the EU. Germany for example has been focusing on the digitalization of transportation and mobility, with a strong focus on autonomous driving, particularly in the public transport sector. According to the German federal government, Germany is a pioneer in establishing legal frameworks for both automated driving (SAE Level 3 – Conditional Driving Automation) and autonomous driving (SAE Level 4 – High Driving Automation). This is reflected in a series of national laws that provide the necessary legal foundation for automotive innovations in this field. Key legislative measures in Germany include: 

• the Eighth Act Amending the Road Traffic Act (of 2017) (Achtes Gesetz zur Änderung des Straßenverkehrsgesetzes), which laid the groundwork for automated driving;
• the Act Amending the Road Traffic Act and the Compulsory Insurance Act (of 2021) (Gesetz zur Änderung des Straßenverkehrsgesetzes und des Pflichtversicherungsgesetzes), commonly referred to as the Autonomous Driving Act, which established a comprehensive legal framework for the operation of autonomous vehicles;
• the Regulation on the Approval and Operation of Motor Vehicles with Autonomous Driving Functions in designated operational areas (of 2022) (Begleitende Verordnung zur Genehmigung und zum Betrieb von Kraftfahrzeugen mit autonomer Fahrfunktion in festgelegten Betriebsbereichen) which further clarifies specific requirements for the deployment of such vehicles; and
• the Amendment to the Passenger Transport Act (of 2021) (Novelle des Personenbeförderungsgesetzes), which plays a vital role in integrating on-demand pooling services into public transportation and in fostering the deployment of innovative mobility solutions.

These exemplary selection of national laws in the area of automotive innovations shows that automakers should – next to developments in EU legislation – also closely consider and monitor national regulatory frameworks, as this can significantly impact the deployment and operation of automated and autonomous driving technologies. Moreover, the national developments in this context might also shape EU legislation and international harmonized rules, i.e., UNECE Regulations.

Safety innovations as part of the type-approval framework as well as in actual development are not only relevant for product conformity. They often also have a significant impact on the areas of product safety and product liability.

This is particularly true in view of the latest changes in the EU's legislative landscape: Regarding product safety, since 13 December 2024, the GPSR has been applicable. Furthermore, on 8 December 2024, the EU's new PLD 2024 entered into force. It will need to be transposed into national law by member states by 9 December 2026.

Both of these legal acts are of significant relevance for economic actors who place products on the EU market in general and automakers as well as automotive suppliers in particular. Both the GPSR and the PLD 2024 address topics such as safety risks due to more advanced and complex technologies, e.g., AI, machine learning and increasing connectivity of/between products. In particular, systems such as ISA, DDAW, ADDW or ADAS (see above) may rely on the implementation of certain 'smart' features.

The GPSR particularly aims at covering new potential safety risks which stem from the use of new technologies, e.g., connectivity features, machine-learning, AI, etc., which are becoming increasingly important in the era of the so-called software-defined vehicle (SDV). In doing so, the GPSR specifically mentions a product's interconnectivity and cybersecurity features as relevant factors when assessing whether it is a 'safe product'. 

For example, Art. 6 (1) (b) GPSR states that the effect on other products shall be taken into account "where it is reasonably foreseeable that the product will be used with other products, including the interconnection of those product". Furthermore, Art. 6 (1) (d) GPSR refers to "appropriate cybersecurity features necessary to protect the product against external influences, including malicious third parties, where such an influence might have an impact on the safety of the product, including the possible loss of interconnection" as a relevant factor when assessing a product's safety. This requirement also interplays with the vehicle's protection against cyberattacks as laid out in UNECE R 155 and referred to in the GSR. With regard to a vehicle's ability to develop its abilities while in use, Art. 6 (1) (h) GPSR also refers to the "evolving, learning and predictive functionalities of the product".

These new and extended factors for assessing whether a product is safe are particularly vital against the background of several other changes introduced by the GPSR: From the mandatory use of the Safety Business Gateway (as part of the EU's Safety Gate, i.e., the EU's rapid alert system for dangerous non-food products) in order to report a dangerous product to entirely new notification obligations in case of an accident pursuant to Art. 20 GPSR, diligently assessing the applicability of potential notification obligations, in particular by way of a risk assessment which incorporates the above factors, is crucial for compliance.

As many of the abovementioned safety innovations and features contribute as building blocks to the advancement of automated/autonomous driving, the safety of the vehicle as a product will become increasingly crucial for road safety and the driver's contributions will eventually be reduced to an absolute minimum or even zero. This will in turn heighten the importance of product safety.

Regarding product liability, like the GPSR, PLD 2024 was adopted particularly against the background of the development of new technologies. In doing so, PLD 2024 revised the definition of a 'product', extended the scope of damage to destroyed and/or corrupted data and introduced several reductions of the burden of proof in favor of the claimant as well as certain evidence disclosure obligations.

Similar to the GPSR, when assessing whether a product is 'defect-free', the "reasonably foreseeable effect on the product of other products that can be expected to be used together with the product, including by means of inter-connection" shall be taken into account pursuant to Art. 7 (2) (d) PLD 2024. Furthermore, PLD 2024 also considers "the effect on the product of any ability to continue to learn or acquire new features after it is placed on the market or put into service" to be relevant in this regard pursuant to Art. 7 (2) (c) PLD 2024. Furthermore, and again, similar to the GPSR, any "relevant product safety requirements, including safety-relevant cybersecurity requirements" shall be taken into account pursuant to Art. 7 (2) (f) PLD 2024. This is particularly relevant regarding the rise of SDVs. It is also interesting to note that where the claimant can demonstrate that the product does not comply with mandatory product safety requirements, the defectiveness of the product shall be presumed pursuant to Art. 10 (2) (b) PLD 2024. This provision intertwines product conformity and product compliance even further with product liability.

Furthermore, pursuant to Art. 8 (1) PLD 2024, a manufacturer shall also be liable for damage caused by a defective component integrated into or inter-connected with their product if that product remains within the manufacturer's control. For example, if an automaker authorizes or consents to the integration or inter-connection of a component provided by a third party (including software updates and/or upgrades), they may be jointly liable together with the manufacturer of the component if said component is found to be defective. This is particularly interesting against the background of the rise of the SDV, as software is now explicitly covered as a 'product' under PLD 2024. Furthermore, PLD 2024 also regards so-called related services as relevant components where integrated into or inter-connected with a product. As an example, in the recitals of PLD 2024 the continuous supply of traffic data in a navigation system is considered to be such a related service.

Generally, the relevant point in time for assessing whether a product is defect-free is when it is initially placed on the market. However, where software updates or continuous learning features of an integrated AI system significantly modify a product, a later date, i.e., the date on which that product was made available on the market (again) or put into service (again) after the software update or learning progress, may be relevant as well. This also applies with regard to the expiry period of 10 (in some cases 25) years under PLD 2024.

Lastly, the advancement of safety innovations will have an overall effect on an economic actor's liability, as reasonable safety expectations are the starting point of assessing whether a product is defect-free. Hence, particularly with increasing user expectations, the standard of reasonable safety is likely to rise continuously.