Norton Rose Fulbright
Tel+ 49 89 21248 456
Norton Rose Fulbright
Tel+ 49 89 21248 458
The automotive industry is an important part the of Polish economy. It accounts for approximately 4% of Poland’s GDP and employs 165,000 directly, and over 1 million people indirectly at OEMs and suppliers of different tiers. Volkswagen Group, Fiat Chrysler and Opel have production facilities in Poland, as does Lear Corporation, Valeo, and others. Although there are no native car manufacturers in Poland at the moment, there are OEMs in the coach, bus and trucks segments. At the same time, Poland is one of the leaders in software developments, with Polish programmers second only to the Russians. Firms like Samsung have decided to build their European R&D centres in Poland. Poland, however, is not at the forefront of developments in autonomous vehicles.
Apart from the lack of a legal framework which would allow such developments there are other reasons why Poland is not excited by autonomous vehicles and companies are not excited about testing their technologies there. Polish road infrastructure, although improving, is generally poor. There have been many cases where automated safety systems, from lane assist to brake assist to pedestrian detection systems, which work well in Western European countries, were fooled by poor signage or by Poland’s disorderly road environment. Driving habits of Poles contribute as well; four in five drivers in Poland say Poles are better drivers than people from other countries, but the truth is, Poles on the road tend to be aggressive and reckless. With climate adding an additional level of uncertainty, Poland is not the ideal testing environment. On the other hand, with Poland being relatively poorer than Western European countries, it should not come as a surprise that the majority of cars bought in Poland are used cars (approximately 77%). Even in Warsaw, the average car is 12 years old and has already travelled 163 thousand kilometers. Thus, it might not be the most favorable market for such new technology.
(i) Road traffic regulations
(1) Participation in traffic
Autonomous vehicles would be principally regulated by the road traffic legislation, which is principally national law. This law was not drafted with autonomous vehicles in mind. Also, although Poland is a party to the Vienna Convention on Road Traffic, it has not yet aligned its national legislation with the changes to the convention, which entered into force on 23 March 2016.
The status quo can be summarized as follows:
The Road Traffic Code defines a driver as a natural person driving the vehicle. The meaning of the Polish word translated into English as “to drive” (“prowadzić”), imply active control and decision making.
Therefore, by statutory construction, operation of vehicles, which are not “driven” by a human (i.e. driverless vehicle, or SAE International’s Level 5 automation) on public roads, would not be admissible. This does not mean, however, that the Road Traffic Code requires the driver to control every function of the vehicle (Level 0 automation).
As long as the driver would exercise decision-making function and could instantly override the automated response of the vehicle, the vehicle would be considered driven by a human. Pursuant to this interpretation:
- Level 1 systems (driver assist), such as adaptive cruise control (adjusting the speed to maintain the safe distance from the car ahead), lane keeping/centering assist (keeping the car centered in the same lane), parking assist (where the steering is automated, but the driver still has to control the gas), or brake assist, i.e., all those which require the driver to constantly monitor the automated function and operate the other function manually, would still qualify as driving, and therefore are admissible; secondary automated systems, such as automatic screen wipers, automatic road lights, etc. are admissible as well.
- Level 2 systems (hands-on automation), such as auto pilot (combination of lane keeping/centering assist and adaptive cruise control, automating both those functions at the same time for a short period of time), self-parking systems (where the car parks itself, but the driver activates the procedure and can stop the vehicle at any moment), i.e., those, where the automated functions can be overridden at any moment, could be considered borderline, but are arguably also admissible.
- Level 3 systems (hands-off automation), where the driver does not need to be prepared to intervene at all times, such as, hypothetically, autopilot, which could effectively drive the car during its entire stay on the motorway, and would prompt the driver to take control only when approaching decision points (lane change, taking the exit ramp), i.e. where the driver retains the decision making function, but does not have to be constantly prepared to take control of the vehicle, would not qualify as driving, and are therefore not admissible.
- Similarly, Level 4 (eyes-off automation), where the driver can release both control and decision-making to the vehicle, are not admissible.
There are no provisions that would allow for the participation of a vehicle with high levels of automation (Level 3 and above) in regular traffic. Therefore, testing of such vehicles in normal road conditions in Poland is currently prohibited.
(ii) Vehicle registration
In addition, in order to participate in traffic on public roads, a vehicle needs to be registered. Vehicle registration is also governed by the Road Traffic Code, but parts of the technical underpinnings of the registration process (e.g. EU homologation, some technical requirements) are subject to EU and/or international law (Poland is a party to the 1958 UN ECE Motor Vehicles Agreement). Technical regulations adopted under the 1958 UN ECE Motor Vehicles Agreement influence the implementing regulation issued under the Road Traffic Code, and EU legislation is expressly referred to. As a result, under the currently applicable law, registration of a vehicle with high level of automation (Level 3 and above) would not be possible.
At the moment in Poland the introduction of vehicles achieving high level of automation if on public roads is not possible, even for testing purposes. Although such vehicles could potentially be tested on public roads, the practical requirements put on the road administrator, police, and the party testing the product, would mean that the part of the road would need to be closed to normal traffic. Although closed tracker can serve a number of valuable functions, Polish laws for testing on open roads will continue to be an AV obstacle in the country.
B. Liability and Insurance
Although the express purpose of developing autonomous vehicles is an increase in security of road traffic, Polish insurance system, as far as it applies to motor vehicles and liability, is not based on the possibility of driverless cars.
The principal rule of liability, established in Article 436 §1 of Polish Civil Code is strict liability of the person possessing the vehicle in his own right (pol. posiadacz samoistny, principally the owner, but could sometimes be someone else) for any harm caused by the operation of the vehicle – unless the harm was caused exclusively because of force majeure, the victim’s fault, or a third person’s fault. If the title to possess the vehicle was transferred to another person (pol. posiadacz zależny, such as e.g., a lessee), such person is liable instead. It is important to note that this liability is not based on who the driver is at the moment (as the driver may merely be the holder of the vehicle in somebody else’s name or without legal title, pol. dzierżyciel). However, in the case of a traffic accident involving two or more motor vehicles, general rules apply (i.e., fault-based liability), but still only affect the persons possessing the vehicle, and not merely holding it. This liability cannot be limited or waived, but the practice is significantly influenced by the provisions of The Act on Compulsory Insurance.
The Act on Compulsory Insurance requires a motor vehicle to be covered by compulsory third party insurance at all times. The party responsible for insuring the vehicle is the person possessing it, either in his own right, or depending on transfer. In cases of such dependent possession, the agreement between the parties usually stipulates, which party is responsible for insuring the vehicle. The policies are 12-month and subject to automatic renewal unless terminated. Any other forms of insurance are voluntary. A motor vehicle, where the driver cannot document the valid insurance cover, will not be allowed to continue to participate in the traffic on public roads.
Under this act, the driver of the vehicle is always covered by the compulsory third-party insurance of the vehicle, regardless of his/her status (including e.g., thieves). This of course shifts the burden of sorting out the facts and liability to insurance companies, where in the case of a traffic accident they can deny liability on account of the holder’s/driver’s lack of fault, or with regard to other situations, based on force majeure or exclusive fault of a third party. This defence would also be available if the third party is the manufacturer/designer of the autonomous vehicle, but considering that fault constitutes the basis for liability, it does not appear to be a very convenient option.
Under the Act on Compulsory Insurance, the insurance company has the recourse against the driver of the vehicle, but only if:
- the driver caused harm intentionally, under the influence of alcohol or other psychoactive substances, or while intoxicated;
- the driver held the vehicle as a result of criminal act;
- the driver did not have the licence required to drive the vehicle (with some exceptions); and/or
- fled the scene of an accident.
Other than that, the insurance company can have claims based on product liability.
(iv) Product liability
Product liability is regulated in Title VI1 of Obligations in Polish Civil Code. In connection with claims under the compulsory insurance policy, the insurance company could bring further claims against the manufacturer. This is also be applicable if the harmed party is the person possessing the vehicles. The limits of this liability are, however, not very well suited to the idea of autonomous vehicles.
- liability arises only with regard to the product, which is not safe, considering its normal use – which direct the focus to the commercial communications, and the information provided to the user;
- with regard to the harm to property, liability is limited to property intended for personal use and predominantly used in such capacity by the harmed party;
- liability does not arise in connection to safety issues, which arose after the put on market, unless they were caused by causes existing earlier;
- liability does not arise in connection with safety issues, which could not be foreseen in light of the state of knowledge and technology existing as of being put on the market;
- compensation does not cover damage to the product, or the profits lost due to the inability to use the product.
Civil Code assumes joint and several liability of the OEM and components supplier, unless the exclusive reason for harm was faulty design or the OEM’s instructions given to the supplier.
This liability cannot be limited or waived, and it does not preclude general tort liability (fault-based), contractual liability, statutory warranty and voluntary manufacturer’s warranty.
Although the existing rules concerning liability and insurance could be applied with regard to autonomous vehicles (provided such would be registered and admitted to traffic on public roads), the allocation of risks does not seem to be efficient. Essentially, most of the economic risk would be borne by the owner or operator of the vehicle and the company providing compulsory insurance cover.
The possibility for those parties to bring strict-liability claims against the OEM and/or the components supplier are limited considerably and do not apply to the damage to the vehicle itself. Therefore, the willingness of insurance companies to provide compulsory insurance cover, and/or comprehensive insurance cover, could be expected to be low.
While other grounds for bringing claims against the OEM and/or suppliers do exist, their practicality seems very limited, although in B2B applications one could consider replacing the statutory framework with contractual instruments.