Background
Looking back at the Dieselgate in September 2015, it becomes clear that change in the approval and market surveillance of motor vehicles has been long overdue, next to recognizing that emission-oriented EU 5 and 6 type approvals regulations had turned outdated. The Regulation is a political compromise between the European Parliament, the Council and EU Commission aimed at raising the quality level and independence of vehicle type-approval and testing, including introducing a framework for increased spot-checks of cars that are already on the EU Market, and improving the system of overall European supervision. By changing EU Regulations on Euro 5 and 6 emission standards ((EG) No. 715/2017), and On Board Diagnostics (OBD) ((EG) No. 595/2009), the EU Commission wants to work towards a clean, sustainable and competitive car sector as part of the project “Europe on the Move”, an agenda for safe, clean and connected mobility.
Another action taken to restore consumer confidence, strengthen the Single Market and support the long-term viability and global competitiveness of Europe’s car industry is to repeal the predecessor Directive which established a framework for the approval of motor vehicles and set out the safety and environmental requirements that motor vehicles have to comply with before being placed on the EU market (2007/46/EG).
- Objectives of New EU Type-Approval Rules
The Regulation overhauls and tightens the previous type approval and market surveillance systems, presenting a new concept on three key aspects: quality of testing, market surveillance and governance of type-approval system.
Quality of testing improves, as Member States organise and carry out market surveillance and controls of vehicles as well as periodically review and assess the function of their type-approval activities (Art. 6). The EU Commission improves market surveillance by demanding regular checks on whether vehicles comply with the applicable requirements (Art. 8). On top of that, the EU Commission strengthens the governance of the type-approval system through spot-checks on vehicles in the market. (Art. 9). In order to detect failures at an early stage, those checks are performed by means of laboratory tests and on-road tests, based on statistically relevant samples and supplemented by documentary checks.
Additionally, the Regulation provides for a governance of the type-approval system by creating a forum for representatives of relevant national authorities who exchange information on enforcement (Art. 11). The testing can be divided into type-approval testing and spot-checks. While the type-approval testing does not really change, the spot-checking does apply to vehicles already on the market.
- Obligations of Member States
Member States must establish or appoint their own approval authorities and market surveillance authorities, next to ensuring that they only permit the placing on the market, the registration or the entry into service of vehicles that comply with the Regulation. National authorities must use accreditation bodies to assess and certify the full remit of technical services. Other EU Member States are enabled to challenge a designation when something is wrong.
Additionally, the Regulation requires Member States to conduct a minimum number of car controls each year (Art. 8). The number of vehicles tested is calculated by the new motor vehicles registered in that country the previous year. At least one in every 40,000 new motor vehicles has to be checked. In case that a state has a low number of car registrations, a minimum of five tests must be made. At least 20 % of the checks must be emission-related tests, with a verification of emissions under real driving conditions.
- Supervision by the EU Commission
The new system of approval and market surveillance is further strengthened by supervision through the EU Commission. Where national authorities do not use accreditation bodies, technical services will be subject to joint audits by the EU Commission with national experts from other Member States, including on-site visits to testing facilities. The EU Commission is authorized to suspend, restrict or withdraw the designation of technical services that are underperforming and do not observe the rules.
Further, the EU Commission must carry out assessments on the procedures put in place by authorities that have granted EU type-approvals in the five years preceding the assessment. In addition, the EU Commission is authorized to carry out tests and inspect vehicles, as well as to impose administrative fines of up to EUR 30,000 per non-compliant vehicle on manufacturers and importers.
- Manufacturers’ Obligations to Provide Vehicle OBD Information
The Regulation requires manufacturers to provide independent operators unrestricted, standardises and non-discriminatory access to vehicle OBD information, diagnostic and other equipment, tools including the complete references, and available downloads, of the applicable software and vehicle repair and maintenance information. Information must be presented in an easily accessible manner in the form of machine-readable and electronically processable datasets so that independent repairers can easily access and use that data (Art. 61).
- Fees and Fines for Manufacturers
In comparison to the past, the situation improves in a certain way. In the past, market surveillance checks by the Member States were not existent which gave room for some manufacturers to disrespect the applicable rules, in particular on circumventing emission rules. A particular emphasis is therefore put on cost burden for testing, as well as sanctions for non-compliance with the type approval rules, including vehicles already on the market. Where a vehicle is already on the market but not compliant, all national authorities as well as the EU Commission can order corrective measures and order recalls at no cost to the consumers. Member States can also levy fines and are required to make sure penalties are proportionate. The EU Commission has special powers to levy fines up to EUR 30,000 per vehicle (Art. 85).
- Provisions regarding Autonomous Vehicles
The Regulation also lays out the framework for special type approval procedures regarding autonomous vehicles at levels 3 and 4. The EU Commission and the EU Member States recently published guidelines together to harmonize the national ad-hoc safety assessments for the exemption procedure for EU approval of automated vehicles.
The guidelines specify that the driver shall be made aware of the use and the limits of the automated driving mode, as well as which tasks other than driving may be enabled by the system for the driver. Further, it describes in a generic manner that vehicles shall have an event data recorders (EDR), similar to the provisions in Section 63a German Road Traffic Act, in order to register the operational status of the automated driving system, as well as to determine the control exercised by the driver during an accident. Further requirements are particularly directed at cyber-resilience of autonomous vehicles, by applying state of the art technology and complying with EU data protection legislation.
- Turkish Automotive Sector
“The Regulation on Approval and Market Surveillance of Motor Vehicles and their Trailers” or “MARTOY” as its abbreviation in Turkish, was published in the Official Gazette on 19th April 2020. It came in force in Turkey in line with EU’s directive. The Turkish Ministry of Industry’s work is equivalent to the EU Commission’s work in the EU. MARTOY leaves the penalties under the existing legislation of Law No. 4703 and the market surveillance regulations.
- Outlook on the Future
While the Regulation does not deliver a comprehensive set of rules on all technical aspects, it is a massive step forward to reduce address the new technological challenges, That said, the level of surveillance is likely to trigger significant additional cost vehicle manufacturers will need to cater for.
- Guidelines on the exemption procedure for the EU approval of automated vehicles, https://ec.europa.eu/docsroom/documents/34802.
- Guidelines on the exemption procedure for the EU approval of automated vehicles, https://ec.europa.eu/docsroom/documents/34802, marginal numbers 13, 28.