In this section Dutch traffic law will be summarised as far as it results in cues for traffic behaviour of autonomous vehicles. First the Dutch traffic regulations will be reviewed, after which civil liability rules will be discussed as far as they give rise to cues for traffic behaviour.
3.1 Traffic regulations
A general feature that the Dutch traffic regulations share with any set of traffic regulations is that they apply to a relatively simple, closed and predictable world, at least compared to may other legal domains. This is one reason why the Dutch traffic regulations are rather precise and concrete (but with some exceptions to be discussed below). Another reason is the need for humans to safely and efficiently coordinate their actions in traffic, which requires clear and precise rules. For this reason “reasoning from first principles” is in traffic undesirable (MacCormick
1998). Moreover, in contrast to domains in which AI & Law has been applied successfully, like social security and tax law, the amount of Dutch traffic legislation is rather modest and is not subject to frequent change.
The main Dutch traffic regulations are the Road Traffic Act 1994 (Wegenverkeerswet 1994, WVW) and the Traffic Rules and Signs Regulations 1990 (Reglement Verkeersregels en Verkeerstekens 1990, RVV). The WVW hierarchically precedes the RVV. The Dutch traffic regulations are (like presumably in all jurisdictions) designed to promote two purposes: safe and efficient traffic. Needless to say that these purposes can in concrete situations conflict. These purposes are codified in Article 5 WVV, which states that ‘It is forbidden to behave in such a way that danger on the road is or may be caused or that the road traffic is or may be impeded’. Only three other articles from the WVW arguably yield cues for traffic behaviour.
Article 12 para 1 WVW states that road users are required to follow instructions given by authorised officials like police officers. Article 6 WVW is the only rule in the WVW or RVV that refers to a driver’s mental state. It says that it is forbidden in traffic to behave in such a way that a traffic accident happens due to one’s fault by which serious bodily harm or death is caused to someone else. The main purpose of this article is not to define a separate cue for traffic behaviour but to allow for more severe sanctions when violation of other traffic rules causes serious bodily harm. Finally, article 185 WVW is a special rule concerning civil liability for damages caused by traffic accidents, broadening the conditions for liability according to general Dutch tort law. It will be discussed further in Sect.
3.2.
The final relevant part of the WVW is a list of definitions. For present purposes the definitions of various kinds of vehicles and traffic agents and of ‘roads’ are the most relevant. They are stated in concrete terms, so they are quite precise.
An obvious potential obstacle for attempts to make AV conform to traffic law (also mentioned by Leenes and Lucivero
2014) is the occurrence of vague and open-textured terms in traffic regulations. Articles 5, 6 and 185 WVW are the only genuinely open norms of Dutch traffic law, with clearly vague and open-textured concepts like causing danger on the road, impeding traffic, fault, serious bodily harm, and causation of harm or damage. As just noted, Article 6 WVW is for present purposes irrelevant. Moreover, the vague notion of causing danger in Article 5 WVW is to a large extent made precise in the RVV, since its rules can be regarded as an attempt to enforce safe traffic behaviour. Article 5 WVW thus has two roles: as a fall-back option in case dangerous behaviour is not forbidden by specific RVV rules, and as a general implicit exception to specific RVV rules in case otherwise permitted or obliged behaviour would cause danger to or impediment of traffic.
An interesting case in this respect is that of a self-driving Google car which was stopped by the California police for driving too slowly. Google had for safety reasons set the car’s maximum speed for roads in a 35mph zone at 25mph and one of its cars was causing a big queue of traffic while driving 24mph.
1 This behaviour was held by the police to violate the following rule from the Californian traffic regulations:
No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic, unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.
Under Dutch law this behaviour would be a violation of Article 5 WVW. Incidentally, this would arguably not be a case of Article 5 WVW making an exception to the speed limit rules, since the speed limit rules are arguably not permissions to drive any with speed up to the speed limit but prohibitions to drive faster than the speed limit.
Because of the purposes of promoting safe and efficient traffic, the rules in the RVV are generally quite concrete, so the problem of open texture and vagueness is not a serious as in other legal domains. Moreover, the special values of promoting safe and efficient traffic also underlie an important difference between criminal traffic law and general criminal law. Unlike in general criminal law, which consists of prohibitions, traffic law mostly specifies obligations, that is, it specifies how traffic participants should behave in particular situations. (Exceptions to obligations are specified as explicit permissions. For example, Article 3 para 1 WVW says ‘Drivers shall keep to the right as much as possible’ while Article 3 para 2 WVW says ‘Cyclists may ride in pairs’.)
Nevertheless, the RVV still contains several vague or open-textured terms. Moreover, the term ‘driver’ raises a legal problem if used in norms, such as in Article 3(1) RVV. With AV the legal problem is who counts as the driver (Vellinga
2017): the human sitting behind the steering wheel, the AV, or perhaps the manufacturer of the AV? However, this is only a problem if observed traffic behaviour has to be legally classified. For present purposes, where the focus is on cues for traffic behaviour, all that counts is how to program the AV such that it will keep right as much as possible.
I now give an overview of the open-textured or vague terms in the RVV.
First of all, the term keeping right as much as possible in Article 3 RVV is open-textured. It should arguably not be read in a physical sense but in the sense of what is reasonably right as much as possible given the traffic context. This reading makes the term open-textured.
Article 17(1a) RVV: drivers who want to make a turn are permitted to get in lane by keeping left or right as much as possible.
Article 28 RVV: sound or light signals are only allowed to avert a threat of danger.
Article 43(3) WVW: on motorways, use of the shoulder is only allowed in case of emergency.
Article 57 RVV is a prohibition for drivers to make unnecessary noise.
Finally, various rules on carrying particular types of light contain the term serious inhibition of visibility.
Other concepts are clear for humans but require some recognition or judgement by AV, on the recognition of objects (such as tunnels, bicycle lanes, crossings and roundabouts) or of spatial relations (on or just before, at a short distance, blocking, making free), or of behaviours of humans (indicating to turn, moving with difficulty) or on observability (that he can clearly see, serious inhibition of visibility). Here are some examples.
Article 11(2) RVV: overtaking drivers who have indicated that they want to turn left.
Article 13 RVV is an exception to Article 3(1) RVV for traffic jams on motor ways.
Article 14 RVV: drivers are forbidden to block crossings.
Article 15a (1): road users are permitted to enter a railway crossing if they can directly continue and make the crossing fully free.
Article 19 RVV states that ‘A driver must at all times be able to bring his vehicle to a standstill within the distance that he can see to be clear’.
Article 23 RVV: drivers are not allowed to stand still at a crossing, railway crossing, bicycle lane, tunnel, ...
Article 24: a prohibition to park at a place meant for immediate loading or unloading of goods.
Article 32(2c): carrying long distance light is forbidden when following another vehicle at a short distance.
Article 47 RVV: a permission not to keep right on or just before roundabouts.
Article 49: RVV: an obligation for drivers to give way to persons who move with difficulty.
Article 68(1b) RVV: a yellow traffic light means stop unless the distance to the traffic light is so short that stopping is not reasonably possible.
Article 75: A yellow flashing light means, dangerous point: carefulness required.
Article 83 requires road users to stop when a stop sign (red lamp or red letters ‘STOP’) is shown from a police vehicle.
A general structural feature of the WVV and RVV is that they allow for rule conflicts and for their resolution with general conflict resolution principles (some of them are also noted by Leenes and Lucivero (
2014)). Article 63 RVV says that traffic signs have priority over traffic rules, Article 63a says that temporary traffic signs have priority over permanent traffic signs, Article 63b says that if various rules concerning the maximum speed conflict, the lowest maximum speed is the valid one, and Article 64 says that as regards giving way, traffic lights have priority over traffic signs. Article 84 says that instructions of authorised officials have priority over traffic signs and rules. As noted above, Article 5 WVW yields an implicit exception to all obligations and permissions in the RVV in case the obliged or permitted behaviour creates danger for or impediment of traffic. This conflict is resolved by
Lex Superior Derogat Legi Inferiori, since the WVW is a statute and the RVV a lower regulation. Moreover, the RVV was drafted according to an explicitly adopted convention to separate general rules from exceptions. So the principle of
Lex Specialis Derogat Legi Generali applies straightforwardly. An example discussed by Leenes and Lucivero (
2014) is Article 15 para 1 RVV, which says that ‘At road junctions, drivers must give way to traffic approaching from the right’, while Article 15 para 2 RVV says that ‘a. drivers on unpaved roads must give way to drivers on paved roads; b. all drivers must give way to tram drivers’. An example of conflicting rules with a not so clear rule-exception structure is Article 14 RVV: ‘drivers must not block road junctions’ versus Article 82 para 1 RVV: ‘Road users are required to follow instructions given verbally or by means of gestures by: authorised officials who are identified as such ...’ (which is a refinement of Article 12 WVW). These rules conflict when a police officer orders a car to stop at a road junction. This conflict is resolved by Article 84 RVV that signals of authorised officials have priority over traffic signals and rules. Finally, an example of a rule conflict not resolved by statutory principles is the conflict between the general priority rules and Article 54 WVW, which says that motor vehicle drivers carrying out special maneuverings, such as starting to drive, driving backwards, driving onto the road from an entrance way, turning, changing lanes, changing between the main lane and a merging lane, should give way to all other traffic. Here it was the Dutch Supreme Court that decided that Article 54 WVW sets aside all other traffic priority rules (HR 17 September 2002, NJ 2002, 549).
Finally, the RVV contains various applicability rules concerning road signs.
3.2 Civil liability rules
The main function of civil liability rules is to determine liability once something has happened. Currently, there is much discussion among legal scholars on liability issues concerning AV when an AV causes an accident (Anderson et al.
2016; Vellinga
2017). However, for present purposes traffic liability rules are relevant in a different way: they can pragmatically entail additional cues for driving behaviour in cases where no specific rule from the RVV or WVW is violated, since rational drivers will want to avoid damages. Below, Dutch traffic liability law will be discussed from the latter perspective.
Article 185 WVW is a special rule concerning civil liability of owners of motor vehicles for damages caused to drivers of non-motorised vehicles or pedestrians. Its underlying principle is that motor vehicles are inherently dangerous and motor vehicle drivers deliberately accept the resulting risks, so that more vulnerable road users should be protected. Accordingly, 185 WVW says that the owner of a motor vehicle involved in an accident is civilly liable for damages to persons or goods not transported by a motor vehicle, unless he can prove that the accident was due to force majeure. Note that liability according to this article does not require negligence or violation of a traffic rule.
Existence of force majeure is seldomly accepted by courts (Rutten and Oskam
2016). For example, according to the Dutch Supreme Court, a technical defect of the vehicle does not count as force majeure. The same holds in general for unusual weather. Finally, mistakes of other road users count only in some very special cases as force majeure (although they can be a reason to distribute the amount of damages over the plaintiff and defendant). To start with, the driver’s behaviour should not be blamable in any way. Next, mistakes of road users over 14 years old only result in force majeure for the motor vehicle driver if these mistakes were so improbable that it would be unreasonable to require of the motor vehicle driver to take this possibility into account. According to Dutch case law, not improbable in this sense are, for example, cases of failure to give way by the non-driver, cycling without light and suddenly crossing a road. For mistakes made by road users less than 14 years old the criterion is even more strict; they only count as force majeure if the child acted with recklessness bordering to intent. Dutch commentators give as a possible example of force majeure that older children deliberately play the dangerous game of crossing the street just before approaching traffic (Rutten and Oskam
2016, p. 323). On the other hand, if a younger child suddenly crosses the street because of carelessness, this does not classify as force majeure. In consequence, force majeure in case of collisions with road users less than 14 years old is by Dutch courts almost never accepted.
Apart from this, the Dutch case law on article 185 WVW is quite diverse and does not yield clear rules on what counts as force majeure (Rutten and Oskam
2016). Nevertheless, a relevant cue for motor vehicle drivers entailed by Article 185 is that collisions should be avoided at all reasonable costs, where a cost is only in very exceptional cases regarded as unreasonable, and where the motor vehicle driver is expected to anticipate possible mistakes by pedestrians or cyclists. According to Rutten and Oskam (
2016), for the extent to which a motor vehicle driver should anticipate mistakes, at least the following two factors are relevant. First, if there are special traffic characteristics, such as the presence of obstacles, pedestrian crossings, bicycle path or bus stops, then more care than usual needs to be taken. Second, if the motor vehicle driver saw or should have seen the other, then force majeure is in practice virtually never assumed. On the other hand, case law also teaches that civil liability on the basis of article 185 WVW does in general not require conclusions about the mental state of the offender (negligence, intent). Generally, all that counts is whether observed behaviour violated a specific traffic rule or was otherwise blamable.
If the accident is between two motor vehicles, then there are no special liability rules and the general rules for tort liability apply. A full analysis of the relevant Dutch case law is beyond the scope of this paper (see e.g. van Wijk
2014) but the general standard emerging from it is that of the perfect driver. Even if two motor vehicles collide, the norms are stringent in that only perfect drivers can fully escape liability. The underlying principle is that cars are inherently dangerous and the consequences of even minor traffic mistakes can be very serious, so people who decide to use cars should be encouraged to drive according to the highest possible standards.