The authorisation process before car manufacturers can place new motor-vehicles on the EU market is set to undergo a radical overhaul if a law recently proposed by the European Commission is approved by the European Parliament and by the Council of Ministers.
The type approval process is one where national authorities certify that a model of a certain vehicle or a vehicle type satisfies all EU safety, environmental and production requirements. If all the relevant requirements are met, the national authority issues an EU vehicle type approval certificate to the manufacturer, authorising the sale of the vehicle type in the EU.
Every vehicle produced in the EU must be accompanied by a certificate of conformity indicating that the vehicle corresponds to an approved type of vehicle.
A vehicle type approved in one EU country is recognised by all other EU countries without the need for further tests and re-certification.
The current system has, however, been found to have a number of flaws which car manufacturers may take advantage of in order to circumvent EU requirements. The new law being proposed by the European Commission is designed to address these flaws in order to ensure that only safe vehicles which respect the environment reach the consumer.
Under the current system, most member states designate bodies which carry out the testing and inspection of a vehicle’s compliance with EU type approval requirements. These technical services bodies are paid directly by car manufacturers.
Such a remuneration system could lead to conflicts of interest and compromise the independence of testing. In terms of the proposed law, these designated bodies will no longer receive direct payments from manufacturers.
Instead, all fees will be collected by the member state which then has to establish a comprehensive national fee structure in order to cover all relevant costs.
The new law also foresees more stringent performance criteria for these bodies providing technical services. They will be regularly and independently audited in order to obtain and maintain their designation. The European Commission will, in fact, have the power to suspend, restrict or withdraw the designation of technical services bodies which do not perform well or are too lax in applying the rules.
Fines can also be imposed on technical services bodies if they fail to carry out the tests rigorously
The proposed law empowers the European Commission to levy penalties on car manufacturers and technical services bodies that place or admit non-compliant vehicles on the market. Car manufactures which are in breach of type approval legislation risk administrative fines of up to €30,000 per vehicle.
Fines can also be imposed on technical services bodies if they fail to carry out the tests rigorously.
The current system places an emphasis on the approval of a vehicle type before it is placed on the market whereas the new rules provide for the surveillance of cars already in circulation.
Both member states and the European Commission will carry out compliance verification spot-checks of vehicles on the market.
All member states will be able to take safeguard measures against non-compliant vehicles on their territory. Currently, only the member state which issued the type approval can initiate a recall.
In terms of the proposed rules, where tests and investigations show non-compliance, any market surveillance authority can decide to demand a recall or, in severe cases, full withdrawal from the market. Other national authorities will then be notified so that they can also take similar action. The Commission too will have the right to order recalls or market withdrawals.
The Commission’s proposal maintains the current ban on defeat devices. A defeat device refers to any element of design of a vehicle which senses features such as temperature, vehicle speed, engine speed or any other parameter for the purpose of tampering with the operation of the emission control system in order to show results which differ from those which are normally encountered in routine vehicle operation and use.
In terms of the proposed rules, the car manufacturer is moreover also obliged to provide access to data of vehicle software for external checks to be conducted. Such a measure complements the Real Driving Emissions (RDE) testing which will begin to take place as from this year.
By virtue of this test, pollutant emissions will be measured by portable emission measuring systems which will be attached to the prototype while driving in real conditions on the road.
This is because it has been found that NOx (nitrogen oxide) emissions of diesel vehicles measured on the road in reality substantially exceed the emissions measured on the currently applicable laboratory test cycle.
The RDE procedure will, therefore, confirm that emission levels of NOx, and particulate emissions measured during the laboratory test, are in line with those emitted in real driving conditions.
Scandals such as the Volkswagen one have re-affirmed the necessity for the overhaul which is currently underway.
In a Single Market such as the European one, it is of the utmost importance that there is a level playing field and fair competition for industry to thrive and for consumers to be able to make informed choices.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.