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Netherlands: Legislation to Allow More Testing of Driverless Vehicles

(Mar. 29, 2017) On February 24, 2017, the Dutch Cabinet approved a bill that removes legal restrictions and makes it possible for manufacturers to carry out much more extensive testing of self-driving vehicles, without the physical presence of the driver in the vehicle. (Self-Driving Vehicles to Hit the Roads, Ministry of Infrastructure and the Environment (Feb. 28, 2017); Sjoerd Hartholt, Vrij baan zelfrijdende auto door experimenteerwet [Public Road Self-Driving Vehicles by Virtue of Experimental Testing Law], BINNENLANDS BESTUUR (Feb. 27, 2017).)  According to the Ministry of Infrastructure and the Environment,

Driverless-vehicles can mean a great deal in terms of mobility: they can drive more closely behind one another so that road capacity is better utilized. Moreover, since the vehicles can communicate with each other, traffic will flow more smoothly. And, traffic will also become safer: currently, some 90% of road accidents are caused by human error. In addition, self-driving vehicles use less fuel which make[s] them environmentally friendly and financially more attractive. (Self-Driving Vehicles to Hit the Road, supra.)

Features of the Experimental Use Law

The draft law will “enable companies to apply for a permit to conduct tests with driverless-vehicles on public roads, with a human being ready to take command via remote control.” (Id.)  Since July 2015, automated vehicle testing has already been allowed through an exemption granted by the Netherlands Vehicle Authority (RDW), but it required that a human being always be in the vehicle to physically take over control if necessary.  (Id.)  The Cabinet had approved the large-scale testing of self-driving cars and trucks on public roads in January 2015, but the requisite legislative changes had to be made before such testing could be implemented.  The first such test conducted in the Netherlands occurred in November 2016 on a highway outside Amsterdam.  (Dutch Approve Driverless Cars for Public, Large-Scale Testing, CTVNEWS (Jan. 24, 2015).) According to the Ministry of Infrastructure and the Environment, the RDW will assess in advance “the locations and conditions under which tests can be performed without the presence of a driver,” through “collaboration with experts, including the National Scientific Institute for Road Safety Research in the Netherlands (SWOV), the relevant road authority and the police.” (Self-Driving Vehicles to Hit the Road, supra.)

Based on the testing done on public roads, the Minister of Infrastructure and the Environment can determine whether further amendment of the legislation is necessary.  This approach, the Ministry indicated, “implements the desire of the cabinet to produce future-proof legislation through which impediments to innovation are removed in a timely fashion.” (Id.)

Possible Specifics of Exemptions to Be Added to Road Traffic Act 

The draft Law Governing the Experimental Use of Self-Driving Vehicles (Experimenteerwet zelfrijdende auto), according to a text made available on the Internet last year, amends the Road Traffic Act by adding two new subsections to article 149a of the Act that expand on the exemption from the Act’s provisions and those of other acts insofar as they have to do with a driver or registration number of the owner of a vehicle. The new subsections allow an exemption “to the extent necessary to conduct experiments with automated systems in vehicles”; however, the Act’s provisions on supervision, enforcement, and criminal responsibility would still apply.  (Experimenteerwet zelfrijdende auto [Law Governing the Experimental Use of Self-Driving Vehicles] OVERHEID.NL  (last visited Mar. 23, 2017) (click on pdf icon near “Draft for Internet Consultation” to view text in English; the consultation was conducted from July 7, 2016 to Sept. 1, 2016); Wegenverkeerswet 1994 [Road Traffic Act 1994] (Apr. 21, 1994, as last amended effective Mar. 15, 2017).)

Under a proposed new article 149aa of the Road Traffic Act, the exemption for experimental testing within the meaning of article 149a is to stipulate:

a. The purpose of the experiment,

b. The roads or road sections on which the experiment will be carried out,

c. The period of time for which the exemption shall apply,

d. The rules referred to in Article 149a, subsection three, from which there may be derogation and, to the extent relevant, the conditions on which derogations shall be allowed,

e. The safety measures that shall be taken in order to conduct the experiment with a view to the interests referred to in Article 2, subsection one [to ensure safety on the road; to protect road users and passengers; to maintain the road and guarantee its usability; to ensure, insofar as possible, freedom of movement];

e.[sic] Control of the positioning, device and method, as well as supervising independent administrative bodies which perform tasks in the field of this law.

f. How the experiment shall be monitored and evaluated by the Netherlands Vehicle Authority (RDW),

g. That use of the exemption shall be terminated if safety is jeopardised as a result or partly as a result of the experiment. (Id. § B, new art. 149aa.)

Among other measures, the draft law also states that an exemption for the experiments to test automated vehicles will require the permission of the Minister of Infrastructure and the Environment. (Id. § B, new art. 149aa ¶ 2.)  The Minister may decide to revoke the exemption if, in his/her opinion, “road safety is in jeopardy as a result or partly as a result of the experiment.”  (Id. § B, new art. 149aa ¶ 3.)  The RDW will submit a report on its evaluation of the testing to the Minister.  (Id. § B, new art. 149aa ¶ 4.)  The draft law also provides for rules on the provision of documents and data by the applicant when applying for an exemption to be prescribed by ministerial order. (Id. § C, new art. 150(3).)

Developments in the European Union

In 2016, at the initiative of the Netherlands, the transport ministers of the 28 European Union Member States signed the Declaration of Amsterdam on Cooperation in the Field of Connected and Automated Driving (Declaration). (Self-Driving Vehicles to Hit the Road, supra; Declaration of Amsterdam (Apr. 4, 2016),  The Netherlands EU Presidency 2016 website (click on download link to view text).)  One of the objectives of the agreement is “to work towards a coherent European framework for the deployment of interoperable connected and automated driving, which should be available, if possible, by 2019 … .”  (Declaration, art. I(a).)

In February 2017, the Netherlands and other EU Member States reached agreements to establish, “as quickly as possible, the large-scale testing of self-driving vehicles,” including, among other tests, “truck platooning and vehicles that communicate data to one another in order to drive on automatic pilot.” (Self-Driving Vehicles to Hit the Road, supra.)  It is expected that the first tests will occur at the end of 2017 or early in 2018.  (Id.)  The various countries and manufacturers involved also concurred that in 2019 it should be possible for self-driving vehicles to cross borders.  (Id.; see also Clare Feikert-Ahalt, Great Britain: Technology Bill Introduced to Regulate Driverless Cars, Increase Penalties for Misuse of Lasers, GLOBAL LEGAL MONITOR (Mar. 21, 2017).)