AUSTRIA Trends and Developments Contributed by: Andreas Eustacchio, EUSTACCHIO
tionally, manufacturers of physical products and their importers were the main actors within the strict liability regime. With the rise of software-centric products, specialised software companies now often hold safety-critical responsibilities even where they do not produce any hardware themselves. In practice, several liability-relevant constellations are likely. • Software developers supply embedded code that forms part of a safety-critical vehicle system, such as a lane-keeping or emergency braking function. • Platform providers operate back-end services that are essential for the safe functioning of a product, such as over the air update (OTA) infrastructures or fleet learning platforms. • AI developers deliver perception or decision- making modules that determine how an automated system reacts to its environment. In these settings, the question is no longer whether software developers have any product-related duties at all, but rather how far strict liability reaches and how responsibilities are allocated between all parties involved. For clients active in Austria, four points are particularly relevant. • Contractual arrangements need to reflect the fact that software can be the source of strict liability, even if the software company acts “only” as a sup - plier. Indemnities, limitations of liability and insur - ance clauses must be drafted with an understand - ing of the potential scale of claims arising from accidents involving automated systems. • Internal compliance structures for software com - panies must evolve. It is no longer sufficient to meet internal quality standards; processes must be designed to withstand external scrutiny from courts, regulators and claimants. This includes robust change management, traceability of design decisions, clear documentation of risk assess - ments and structured incident response proce - dures. • Software developers and hardware manufactur - ers need to agree on how product monitoring and
recall duties are shared. When a safety issue is discovered, someone must decide whether to dis - able functions, deploy patches, issue warnings or initiate recalls. If roles are unclear, both sides risk allegations of inadequate follow up and delayed action. • In many projects, software is developed for another company that markets the product under its own name and appears as the manufacturer to the cus - tomer, for example in “white-label-constellations” or own-brand constellations. In such constella - tions, the apparent manufacturer (quasi producer) will typically bear strict product liability externally, while the actual software developer remains in the background. This makes it all the more important to negotiate clear recourse and indemnity arrange - ments between the apparent manufacturer and the software supplier, so that internal risk allocation reflects the potential exposure towards end users. Autonomous Driving: Layered Risks and Shared Responsibilities Nowhere do these trends converge more clearly than in autonomous and highly automated driving. A mod - ern automated driving system is best understood as a layered architecture. At the bottom layer lies the physical vehicle with its classic safety systems: brakes, steering, suspension, airbags and crash structures. At the next layer, sen - sors such as cameras, radar and lidar collect data about the environment. Above that, software modules interpret this data, create a model of the vehicle’s sur - roundings and decide on driving actions. On the top layers, connectivity and back-end services support navigation, updates, fleet learning and sometimes remote supervision. Each layer involves different actors and potential fail - ure modes. For clients in Austria, this raises complex questions about how strict liability is distributed when an accident occurs: is the alleged defect in the sensor hardware, in the perception algorithm, in the decision logic, in the actuator interface, or in a connectivity ser - vice that failed at a critical moment? In many cases, several layers interact, and it may be difficult to pin - point a single cause.
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