On 15 September 2022, a milestone in automated vehicle regulation was quietly reached with the coming into force of Commission Implementing Regulation 2022/1426 (the Regulation).  Adopted by the European Commission on 5 August 2022, the Regulation provides for uniform procedures and technical specifications for the type approval of the automated driving system (ADS) of fully automated vehicles in the European Union.  Applicable to small series production, the EU will seek to develop and adopt requirements for whole vehicle type approval of fully automated vehicles produced in unlimited series by July 2024.  In this post, we discuss the relevance of the Regulation not just within the EU, but throughout the world including the UK.

Overview of the Regulation

There are four Annexes within the Regulation. Namely:

  • Annex I: information required to obtain EU type-approval
  • Annex II: performance requirements and technical specifications, which vary based on the scenario and operating context that the vehicle finds itself in
  • Annex III: guidance for approval authorities, when reviewing applications
  • Annex IV: further detail on preparing an EU type-approval certificate.

The Regulation therefore provides requirements relevant to all the stakeholders involved.  As with the pre-existing type approval framework for conventional vehicles and vehicle systems (which the Regulation adds to), it not only informs manufacturers about the performance requirements and technical specifications that their autonomous vehicle must meet, but also how they will go about obtaining a certificate of compliance, and how the relevant authorisation authority will declare compliance.

Of particular importance is Annex II, in that it provides the performance requirements for the automated vehicle. For example, it requires:

  1. for the vehicle when driving under “nominal traffic conditions” to “be capable of performing the entire dynamic driving task (DDT)”; which includes operating at safe and legal speeds, maintaining an appropriate distance from other vehicles, and adapting its driving as and when required (Annex II, Art 1). 
  2. when driving under “critical traffic scenarios” (ie. an emergency), it must, again, “be able to perform the DDT”; however, here, this requirement is limited to where the emergency is “a reasonably foreseeable… scenario in the operational design domain” (Annex II, Art 2.1). In such an instance, the vehicle must be able to “automatically perform appropriate emergency operation”, which includes braking and evasive steering to minimise risks to safety (Annex II, Art 2.1.1); and
  3. of particular novelty for type approval regulations, Annex II addresses ethical imperatives, in particular that where risk to human life is unavoidable, the vehicle shall not be permitted to discriminate “on the basis of personal characteristics” of the at-risk humans (Annex II, Art 2.1.1.1).

Relevance of the Regulation - EU and Northern Ireland

The Regulation has general application throughout the EU since 15 September 2022 even without any implementation by Member States.

In addition to EU Member States, however, the Regulation also applies to Northern Ireland as a result of the current Northern Ireland Protocol.  In recognition of this, the DfT issued an Explanatory Memorandum on 29 September 2022 clarifying the legal position although it expects that there will likely be no “practical impact on producers in NI” by virtue of the limited numbers of vehicles likely to be involved for now (Para 11) and the EU and UK operating under a common UNECE international framework (Para 15).

Relevance of the regulation – outside the EU

However, Northern Ireland aside, the rest of the UK and indeed the world will be keenly aware of this key development in the EU market.  The EU remains a key global automotive market and stakeholder in the international automotive standards framework under the UNECE. Therefore, the Regulation is likely to be a relevant consideration for any automated driving systems and vehicles produced with a view to export including to the EU.

Regarding the UK, whilst the proposed parallel UK CAV approval framework might raise the possibility of regulatory divergence with the EU, the UK has indicated in the DfT Explanatory Memorandum that the proposed incoming regime for GB Type Approval and approval of ADS may well not differentiate too materially by reason of the common UN international framework, relying on the work of the Working Party on Automated and Connected Vehicles (GRVA) to which the UK is a contributor. The Explanatory Memorandum concludes that “general concepts and a considerable number of requirements are likely to be similar or compatible” (Para 12) as between the incoming UK framework and the EU Regulation. 

Pending publication of the UK’s proposals, the Explanatory Memorandum provides a degree of assurance (if needed) that there will be broad alignment in UK proposals with regulations on international as well as EU level.  Differences will likely be contained to areas in which the UNECE and GVRA have not made provision or are not actively engaging on or, alternatively, in respect of national road rules particular to Great Britain.

With thanks to Callum Duckmanton