Hogan Lovells White Paper calls for flexibility as the EU establishes its first-ever regulatory framework enabling the launch of Autonomous Vehicles

20 October 2021 – Global law firm Hogan Lovells has today shared its recommendations on the future of Europe’s regulatory framework for autonomous vehicles (AVs), as the European Commission takes an important first step in submitting a Draft EU ADS Regulation to all 27 Member States ahead of a Public Consultation in November.

The regulatory framework published in late September 2021 will be used to help shape the future of AVs across the EU and will have far reaching implications on the AV industry in Europe for years to come.

The Draft EU ADS Regulation sets out the type-approval rules for AVs with regard to their automated driving system (ADS) to create a harmonised pathway for (SAE/ISO) “Level 4” or “fully automated” vehicles to be deployed on public roads across Member States – with no human driver. It also establishes aggregate safety metrics that will be used to benchmark performance, and ultimately will be used as a measurement for allowing AV testing and deployment.

The Hogan Lovells White Paper “The Road to Autonomous Vehicles” issued today identifies three key recommendations for a legal framework for AVs, which will guide regulatory developments at an EU and national level. They include:

1. A broad, holistic, and forward-looking approach to type-approval across Europe is important. The regulatory framework needs to be as flexible as possible. At a minimum, the existing system for type-approval should be used as a foundation and should not be undone for AVs/ADSs only.


2. The assumption of regulatory responsibility and proof of safety concept should be considered as the decisive factor for regulations. Expertise is key when it comes to putting AVs onto public roads in the market and needs to be considered when allocating roles and responsibilities for different economic operators


3. Avoiding ambiguities (in particular to the existing regulatory framework), inconsistencies and the use of unclear terms and definitions that may lead to interpretation issues and delay the development and commercialisation of AVs.

The Draft EU ADS Regulation is part of a broader maturation in Europe’s AV regulatory environment. Other promising efforts are currently being made by France, Germany and the Netherlands, although Germany appears to be deviating from current existing broad definitions and a flexible approach applied at the EU level. The White Paper highlights that a harmonised approach across Europe providing adequate flexibility will be key for the long-term success of AVs.

Patrick Ayad, Global Leader of Mobility and Transportation at Hogan Lovells, said: “This is a key piece of research on the future of Europe’s regulatory framework for autonomous vehicles.”

“We have an exciting opportunity to introduce autonomous vehicles in Europe. Current efforts made within Europe are encouraging and align well with the recommendations that we have made in our White Paper today. We need to take a broader and holistic approach to type approval as this will be even more valuable and beneficial for this purpose. Technological innovations, emerging new mobility solutions, as well as commercial and corporate partnerships changing the industry landscape call for a flexible framework – this needs to apply across Europe and individual Member States to work.”

Key highlights from the White Paper include:

• AV technology and the industry landscape are evolving rapidly. Developing an automated driving system (ADS) remains a highly-resource intensive endeavour, requiring extensive technical and specialised expertise.


• The challenge facing regulators is to provide a legal framework to allow for commercial deployment across Europe. This means setting appropriate “type-approval” requirements that meet the dual purposes of ensuring the technology is safe as well as facilitating commercial deployment in a way that will deliver the value the EU Commission has envisaged.


• Steps taken by the French, German and Dutch Governments are encouraging in that they seek to set out the legal basis for the approval of ISO/SAE Level 4 driving automation directly, and not lower-level human driver-assistance systems.


• The shift from conventional vehicles to AVs is a unique and disruptive scenario: it is the first time that not only the vehicle but also the driver (the ADS) are being regulated and type-approved.


• Innovation calls for flexibility. Regulating innovation calls for the same. An open and flexible approach has proven successful for AV testing over many years, building on - rather than replacing - existing regulatory concepts. This same lesson should be applied when it comes to the key question of defining which entity (or group of entities) should be responsible for presenting the AV - that is, the base vehicle and the ADS - to a regulator for type-approval.


• While the European Commission appears to be effectively addressing this issue under its forthcoming ADS Type Approval Implementing Act (which is expected to be in place by July 2022), it seems that the German Government takes a different approach under its current draft for an ordinance implementing the newly adopted changes to road traffic laws enabling regular operation of SAE/ISO Level 4 AVs, which, contrary to existing laws, introduces a new definition for “manufacturer” that refers to the “vehicle manufacturer”.

Hogan Lovells is one of the world's leading law firms in its dedication to an industry sector focused-approach, enabling us to advise our clients in a sector-focused manner, across practice groups, borders and industries.

In 2020, we created a new global Mobility and Transportation sector group, bringing together our already established industry sectors Automotive (and Mobility) and Aerospace and Defence as well as our new industry sector Transport and Logistics, to better represent the rapid changes facing the Mobility and Transportation world.

The full White Paper can be accessed here.