A French Revolution, at last?

Despite optimistic statements in 2016 on both sides of the Atlantic (in between the European Commission’s communication on connected cars for Europe, and the Obama administration’s Detroit Auto Show announcement), it would seem that some of the hype surrounding connected and autonomous vehicles (“CAVs”) faltered. One reason may be the desensitization of the general public, as the initially promised 2020 deployment is dawning without a hint of general commercial availability in sight. On the other hand, the intricacies of the regulatory frameworks at stake also hinder the development of consumer-ready offers.

More often than not, France is perceived as an administrative maze, yet may become (unexpectedly to some) a leader in the race to regulating this incoming industry. However, far more than being limited to the automotive industry, regulating CAVs will serve as the blueprint for an artificial intelligence (“AI”) legal framework.

1. France as a CAV regulation sandbox

1.1 Fostering innovation through an objective framework

In 2016, France materialized its intention to actively seize a pole position in the CAV race. Through an ordinance dated August 3, 2016, a general framework to allow for experimentations of CAVs in real traffic conditions was adopted. While this first attempt was welcomed warmly, it also called for additional implementation decrees to provide a complete understanding of the requirements for experimentation authorizations to be granted, which were only adopted in March 2018. As a consequence, more of the authorizations granted relied on guesswork and lobbying prior to the decree and the influx of requests for authorizations further to the decree led to one of the key industrial players, VEDECOM, to obtain its authorization only three days prior to the official launch of its CAV fleet on December 10, 2018.

Discretionary appreciation and administrative delays jeopardized the French ambition — as of December 2017, only 51 experimentation authorizations had been granted and 19 in the first quarter of 2018, totaling 200,000km, with leading globalized French companies favoring experimenting abroad (Renault through the Nissan-Mitsubishi alliance; PSA in Singapore with nuTonomy and Navya in the Nordics).

Acknowledging this initial hiccup, France decided to shift gears and come up with a complete overhaul of its CAV framework, with (i) a more liberal and transparent experimental framework, and (ii) a timeline for a general framework of CAVs commercialized further to such experimentations.

1.2 Liability and beyond

Aside from a transparent process, the most welcome update of the French framework, through the PACTE Act (Act no. 2019-486, dated May 22, 2019, on companies’ growth and transformation), addressed the issue of liability during the experimentations:

• From a criminal law perspective, a driver is no longer liable under Article L121-1 of the Highway Code. Indeed, this presumption of criminal liability had hindered experimentation, as the designated driver was often an employee of either party to the consortia leading the experimentation effort. Now, such criminal liability exclusively bears on the entity carrying the experimentation authorization for all accidents occurring during the delegated driving sections. Such statutory designation of the liable party is even more adequate since the PACTE Act also provided for the possibility for the “driver” to be located outside of the CAV, thereby allowing for several individuals to potentially exert control over the vehicle.

• From a civil liability perspective, the PACTE Act does not amend the existing framework. Indeed, in France, being one of the countries under a no-fault victim insurance system, it has been assumed that no change would be necessary. However, the complexity of the relationship between the plurality of stakeholders in a CAV ecosystem (original equipment manufacturers (“OEMs”), connectivity providers, infrastructure managers, value-added service providers, insurers, and the drivers) may open up the field of complex and lengthy litigation, led by insurers, to ultimately determine the player that caused the accident.

A companion piece to the PACTE Act, the Loi d’Orientation des Mobilités (Mobility Orientation Act, or “LOM”) was initially expected to be adopted around the same time as the PACTE Act. As of the drafting of this article, however, the LOM is still currently being discussed by the French Parliament. and subject to change. However, the stability over the latest public drafts tends to confirm that from the moment the LOM is adopted, the government will be able to perform, by way of ordinance, a complete update of the numerous regulatory provisions surrounding CAVs, and notably:

• Liability regimes – depending on the sandbox results resulting from the PACTE Act experimentation, as well as the public perception of the potential accidents, such regime may remain similar or take the necessary steps to be adapted;

• Black-boxing and availability of traffic data – with first responders and infrastructure managers for traffic management purposes but also insurance companies for liability determination. To that extent, CAVs will need not only connectivity but also black boxes to retain such data (or “Autonomous Driving Data Recorder,” already mandatory in Germany since 2017);

• Open environment for car maintenance services – further to the battle still raging between OEMs and aftermarket players surrounding the access to car data through the OBD port, it will be interesting to see the interplay between OBD and a more general access to CAVs data; and

• Regulation of Over-The-Air (“OTA”) updates – there is little doubt that the issue of Tesla’s activation of CAV functionalities is playing a role in exposing what OEMs could do to change their vehicles’ behavior, even after their type authorization. 

An additional point on the post-LOM agenda is the obligation to make available “the data produced by digital services for mobility assistance” to the newly created “mobility organization authorities.” While the scope of this latter provision remains to be seen, some perceive this as a jab at the GAFAM and way for France to recapture some of the value generated by their services.

2. The blueprint of global AI reflections

2.1. A free flow of data to create value … and assess liability

While the PACTE Act is aimed at fostering the growth of French industry, notably through CAV experimentation, the LOM aims to organize new mobility services. As such, the post-LOM agenda described above is not its single point of focus. As of the latest available draft of the LOM, several provisions remain heavily disputed, mostly in relation to the implementation of a European Union Delegated Regulation (Commission Delegated Regulation no.2017/1926 of 31 May 2017supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the provision of EU-wide multimodal travel information services) and the obligation, for mobility stakeholders, to make some of the technical data relating to their services available to the above-mentioned “mobility organization authorities,” notably in order to foster the development of third-party services.

Whether CAVs will be included in this scope will mostly depend on the use case for their deployment. However, the proximity of the two provisions in the LOM must be put in perspective with the other publicized ambition of France: becoming a leader of AI and its regulations. Indeed, AI solutions rely on comprehensive data sets, and securing access and retention to the data is paramount to France’s success.

In addition, the liability systems laid down for CAVs will be a test run for a broader implementation to all autonomous systems, including AI — be it shifting the criminal liability on the entity placing the autonomous system on the market, to no-fault victim insurance coverage, to the requirement for black boxes and data availability.

2.2. A global scope by essence

Automotive regulation grew out of national concerns. Even international efforts, such as the Vienna Convention on Road Traffic, came late (1968) and still does not encompass all countries (the United States being a major absentee). However, the reliance of CAVs on digital technology, which is by nature unrestricted to geographical boundaries, calls for global solutions.

Armed with its new, albeit only soon-to-be complete, legal framework on CAVs, France has made it clear that it will play an active role in international forums to ensure that the changes required for a swift commercial deployment of CAVs will be adopted. Such forums include the United Nations (where France submitted a proposal for “a safe and coherent international legal framework”), the G7 (where France is championing a “new method of validation and homologation adapted to CAVs”), and all European institutions.

While it may have taken a wrong turn early on, France is now effectively back in the CAV regulatory race, with global ambitions.

First publication: The Future Of Transportation – Executive Briefing 2019.