Regulating driving automation in the European Union – criminal liability on the road ahead?
| Published date | 01 March 2024 |
| DOI | http://doi.org/10.1177/20322844231213336 |
| Author | Sabine Gless,Katalin Ligeti |
| Date | 01 March 2024 |
Article
New Journal of European Criminal Law
2024, Vol. 15(1) 33–57
© The Author(s) 2023
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DOI: 10.1177/20322844231213336
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Regulating driving automation
in the European Union –
criminal liability on the road
ahead?
Sabine Gless
University of Basel, Switzerland
Katalin Ligeti
University of Luxembourg, Luxembourg
Abstract
Technological developments enable modern cars to drive autonomously. The EU has embraced this
phenomenon in the hope that such technology can ameliorate mobility and environmental problems and
has therefore engaged in tailoring technical solutions to driving automation in Europe. But driving
automation, like other uses of AI, raises novel legal issues, including in criminal law –for instance when
such vehicles malfunction and cause serious harm. By only pushing for a technological standard for self-
driving cars, are EU lawmakers missing necessary regulatory aspects? In this article, we argue that
criminal law ought to be reflected in EU strategy and offer a proposal to fill the current gap, suggesting an
approach to allocate criminal liability when humans put AI systems in the driver’sseat.
Keywords
artificial intelligence, criminal liability, EU harmonisation, EU digital strategy, self-driving cars,
autonomous vehicles
Corresponding author:
Katalin Ligeti, University of Luxembourg, Alphonse Weicker, Luxembourg 41511, Luxembourg.
Email: Katalin.Ligeti@uni.lu
Introduction
Over the last few decades, we have witnessed a digital transformation that has brought
many benefits accompanied by multiple risks.
1
Driving automation provides a very good
example.
2
More and more motor vehicles with driver-assistance systems or self-driving
capabilities travel our public roads. In the past, autonomous vehicles were the stuff of science
fiction novelists; now, self-driving cars are a reality.
3
Self-driving cars offer new oppor-
tunities to facilitate the mobility of disadvantaged persons (e.g., the disabled, the elderly,and
persons too young to drive) and could help address the lack of public transportation in rural
areas. Furthermore, interest in driving automation is propelled by the hope that assisted- and
self-driving cars will make our streets safer in the long run. After all, an AI system’s attention
span is not as limited as ours, they have no appetite for wine and beer, and they are expected
to make fewer mistakes (at least in standard situations).
4
Although cars equipped with driver-
assistance systems and self-driving cars can do much good and greatly increase transport
safety and societal welfare,
5
one cannot disregard the possibility that those vehicles may
cause not only property damage but also serious injury, including loss of human life.
6
Against this background, the EU has developed a digital strategy to make digital transformation
benefit the people living in the EU; it contains a number of actions and initiatives, including
some touching upon driving automation, such as new type-approval requirements for advanced
1.Againstthis background, the EU hasdeveloped a digital strategyto make digital transformation benefit the people living in
theEU.TheEU’s Digital Strategy, which formsone of the Commission’ssix priorities for 2019–2024, pursues, inter alia,
actionsintended to encourageand enhancethe developmentand use of AI, which isthe backbone of Assistedand Automated
Driving Systems. For an overview of the EU’s Digital Strategy, see the European Commission’s Website: <https://
commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age_en> accessed 18 October 2023. For
the purposesof this essay,the term ‘EU Digital Strategy’isused in a broader sense and alsoincludes initiatives whichhave
beenput forward underthe Mobility Strategy(such as regulationon the new type-approvalrequirementsfor advanceddriver-
assistance systems and automated vehicles) but are related to digital transformation in the field of automated mobility.
2.The term ‘driving automation’is used in this discussion to capture both assisted and automated driving systems, as those
terms will be further elaborated in Section II.
3.Sabine Gless, Emily Silverman and Thomas Weigend, ‘If Robots Cause Harm, Who Is to Blame? Self-Driving Cars and
Criminal Liability’(2016) 19(3) New Criminal Law Review 412, 412-15.
4.Commission,‘EU Road Safety PolicyFramework 2021–2030.Next steps towards “Visio n Zero”’, SWD(2019) 283 final, 9.
5.Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic
and Social Committee, the Committee of the Regions, ‘On the road to automated mobility: An EU strategy for mobility of
the future’, COM(2018) 283 final, 1.
6.In this regard, see numerous Tesla cases in which Teslavehicles running driver-assistance systems or other self-driving
features have been involved in accidents.
34 New Journal of European Criminal Law 15(1)
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