For several years now we have been hearing about the "uberisation of law, which could be defined as the digitalisation of law with new technologies and in particular artificial intelligence. Today it can therefore sometimes be complex to succeed in attributing a legal regime to objects that function thanks to artificial intelligence, and this is particularly the case for autonomous cars that are developing more and more. I therefore thought it would be interesting to focus on the complexity of assigning liability in French law in the case of an accident caused by a vehicle equipped with a driver delegation system (DDS).

From a chronological point of view, it should first be pointed out that it was very complex to create the liability regime applicable to autonomous cars because of the close link between the system and an artificial intelligence. As Christophe Lachièze pointed out, "The law was designed by and for human beings, how could it be applied to machines imitating human intelligence". It was therefore essential to rethink and adapt, in particular, Article L121-1 of the French Penal Code, which states that no one is responsible for anything other than his or her own actions. Indeed, how can this be applied to a driver of a car with a system of delegation of driving, who is therefore not totally in charge of driving the car because it is shared with an artificial intelligence?

It was therefore on 15 April 2021 that Ordinance No. 2021-443 on the criminal liability regime applicable to vehicles with delegated driving was published, following the law on the orientation of mobilities of 24 December 2019. This order established a system of shared responsibility between the driver and the vehicle manufacturer, it being specified that the manufacturer is to be considered as a natural or legal person responsible for the conformity of a vehicle and its system. This order calls into question Article L121-1 of the French Highway Code, which made the driver criminally liable for any offense committed by him while driving the vehicle. Indeed, the new article L123-1 provides that article L121-1 cannot be applied to a driver for offenses resulting from a manoeuvre of a vehicle whose driving delegation system is activated. Liability therefore seems to be based on the notion of custody of the thing: as long as the system of delegation of driving is not activated, the driver is its custodian and consequently will be liable in the event of an offense.

However, this ordinance also introduced reciprocal obligations on both the manufacturer and the driver. Indeed, the driver will not be able to exonerate himself from all responsibility simply by activating the driver delegation system. The driver has a general obligation of caution and safety (Article R412-6 of the French Highway Code), and must always be in a position to take control of the car and therefore be vigilant. Strictly speaking, Article L121-3 specifies three cases in which the driver will be held responsible even if the system is activated: if the driver takes control of the car and commits a fault, if the system "requests" that the driver take control of the car and the driver does not do so because he or she is reckless, and finally in the event that the driver does not comply with the orders of the police or exceptional priorities.

The manufacturer has two obligations: a prior obligation to inform the consumer (L.319-2 of the French Highway Code and Article L242-25-1 of the French Consumer Code), and a general safety obligation for the system integrated into the car, i.e. that the system presents the safety that can legitimately be expected. Nevertheless, this safety obligation has been increased by Article L.319-1 of the French Highway Code, which stipulates that the system is subject to precise conditions in its operation defined by the manufacturer: obligation to alert the driver in the event of system failure, minimum risk manoeuvre in the event of driver failure, etc.

Finally, it should not be forgotten to specify that for the manufacturer to be held criminally liable in the case of unintentional injury to life or limb, a fault during the period of activity of the system will have to be reported, which therefore provides a further framework for this liability.

In conclusion, this new criminal liability regime subjects both the manufacturer and the driver to obligations of safety, caution and vigilance when using this type of autonomous car. This system therefore imposes a liability that could be described as shared, depending on who has "custody" of the vehicle, although it seems that the driver's liability will be easier to engage in a general way. Nevertheless, this criminal liability does not seem to be sufficient to settle all the disputes that may arise during the use of an autonomous car, and amendments and additions will no doubt have to be made in the near future.