European Commission Proposes New Regulation to Replace 2007/46/EC
EC Directive 2007/46/EC, also known as the Framework Directive, is the foundation on which the whole European Union type approval regime is based. In addition to specifying the individual EU Regulations and UN ECE Regulations that vehicles, systems and components must comply with, it also specifies the processes and procedures to be followed to obtain type approval, the format of all of the type approval documentation (information documents, type approval certificates, Certificates of Conformity, etc.) and the Conformity of Production requirements applicable for type approval. Furthermore, 2007/46/EC was the Directive that first extended the mandatory type approval requirements to non-M1 category vehicles, i.e. trucks, buses and trailers.
Due to the significance of EC Directive 2007/46/EC, in 2010, the European Commission began a process to review this Directive and its implementation to ensure that it was "fit for purpose" and that it was achieving its intended goals. As part of this process, a public consultation exercise was undertaken at the end of 2010. The potential changes to the Directive that were identified following this work were then subject to an "Impact Assessment" by the European Commission during 2011 and a "Fitness Check" on the Directive was undertaken during 2012/13.
In addition to the issues identified during the course of the above reviews, the European Commission's work on identifying deficiencies in the current Directive was also influenced by two highly publicised "violations" of the type approval requirements that have come to light in the past couple of years. The first of these was a situation where the European Commission felt that certain vehicle manufacturers, in collusion with the Technical Services and Approval Authorities, were abusing the definitions of "new types" and "existing types" to avoid compliance with the EC Directive on mobile air conditioning which required the use of refrigerants with a global warming potential of less than 150. The second was Volkswagen's non-compliance with the emissions requirements, where a number of diesel engined models in Volkswagen Group's range were fitted with "defeat devices".
As a result of the work detailed above, the European Commission identified the following six areas where revisions to the requirements of the current Directive were required:
- Difficulties in tracing the origin of non-compliant and unsafe products encountered on the market and lack of clarity about the respective responsibilities of economic operators involved in the supply chain, such as importers and distributors.
- Lack of clarity about the respective responsibilities of, and the cooperation between, the different national authorities that may be involved in the enforcement of the technical harmonisation legislation for the free movement of motor vehicles (in particular type approval, market surveillance and border control authorities).
- Divergence in the stringency and quality of the type approval and conformity assessment tasks carried out by the Technical Services.
- Lack of clarity on the rights and obligations of Member States' Authorities in taking safeguard measures and initiating recall procedures.
- Shortcomings in the control procedures for ensuring Conformity of Production.
- Lack of coordination and supervision at EU level to ensure harmonised enforcement of the type approval and market surveillance requirements.
To address these issues, on 27th January 2016, the European Commission published a draft EU Regulation which is intended to repeal and replace 2007/46/EC. The following is a very brief summary of the changes that have be introduced into this new draft Regulation to address the identified issues:
- Market surveillance requirements - New requirements on market surveillance (similar to the ones that were introduced into the revised type approval framework Regulations on tractors and motor cycles in 2013) are introduced into the draft Regulation. These new requirements are to ensure that production vehicles and components being placed on the market comply with the type approval requirements, are safe and are not harmful to the environment. Each Member State will be required to carry out compliance verification inspections and tests on vehicles and components placed on the market in their country and the European Commission will also undertake their own compliance verification inspections and tests.
- Designation of responsible Authorities - Each Member State will be required to designate the Authority in their country that is responsible for type approval and the Authority that is responsible for market surveillance. It is permissible for one Authority to be responsible for both activities.
- Implementation and coordination of safeguard measures and recalls - The draft Regulation includes new provisions on the implementation of safeguard measures (e.g. prohibition of sale) and on the initiation of recalls, and on the coordination of such activities between Member States. These new provisions specify the conditions under which Member States can implement these measures unilaterally and on the process for informing other Member States. The new provisions also allow for the European Commission to implement safeguard measures and initiate recalls on an EU wide basis.
- Peer reviews of Type Approval Authorities - To ensure the competency of all Type Approval Authorities and consistency between the Type Approval Authorities in different Member States, the draft Regulation specifies that every Type Approval Authority must be peer reviewed by representatives from the Type Approval Authorities from two other Member States every two years.
- Designation, monitoring and review of Technical Services - To ensure the competency, impartiality and independence of Technical Services, the draft Regulation specifies detailed requirements on the designation, monitoring and review of Technical Services. Prior to their designation, Technical Services must be assessed by an assessment team consisting of representatives from the Type Approval Authority from which designation is sought, two other Type Approval Authorities and the European Commission. Designation will only be valid for five years, after which time the assessment exercise must be repeated. During the designation period, the designating Type Approval Authority must continually monitor the performance of the Technical Service and carry out an on-site assessment of the Technical Service at least every 30 months.
- Payments to Technical Services - Under the current type approval scheme, the fees for undertaking type approval tests are paid directly to the Technical Service by the type approval applicant (e.g. vehicle manufacturer). To address the European Commission’s concern that this type of financial arrangement could lead to a conflict of interest and compromise the independence of the testing, the draft Regulation specifies a new arrangement for paying the Technical Service’s fees. Under the proposed arrangement, the type approval applicant would pay a type approval fee directly to the Type Approval Authority, which would include the costs for the Technical Service to undertake the necessary type approval tests, and the Type Approval Authority would remunerate the Technical Services for the costs of undertaking those tests.
- Forum for the Exchange of Information and Enforcement - The draft Regulation specifies the setting up of a Forum for the Exchange of Information and Enforcement that would meet on a regular basis. This Forum will be chaired by the European Commission and attended by representatives from the Approval Authorities of each of the Member States. The Forum would allow for the exchange of information on best practices, enforcement problems, interpretation issues, etc. and allow for coordination of enforcement activities such as compliance verification testing, Approval Authority reviews, etc.
- Responsibilities of importers and distributors - The draft Regulation introduces requirements on the specific responsibilities applicable to importers, distributors and any other party involved in the provision of vehicles and components with regard to both type approval and market surveillance.
- Time limit on the validity of type approval certificates - The draft Regulation specifies that all type approval certificates will only remain valid for a maximum of 5 years. After that time, if the product remains in production, the applicant will have to apply for the type approval to be "renewed", at which point the vehicle, system or component will be treated as a "new type" and will be required to comply with the type approval requirements applicable to "new types" of vehicle, system or component at that point in time.
- Access to Repair and Maintenance Information - The requirements on the access to repair and maintenance information that are currently contained in the EU emissions Regulations applicable to light and heavy duty vehicles are deleted from those Regulations and transferred into the draft new "Framework" Regulation.
- Penalties for non-compliance - The draft Regulation specifies that all Member States must implement rules on the financial penalties to be applied to manufacturers, importers, distributors and Technical Services for infringements of the type approval requirements. Furthermore, the draft Regulation specifies that the European Commission may impose administrative fines of up to €30,000 per vehicle, system or component for non-compliances with the type approval requirements.
The draft Regulation has now been passed to the European Council and European Parliament for their review and adoption; a process that could take many months, or even years, to complete. However, due to the fact that this draft Regulation addresses at least some of the issues that were raised as a result of the high profile "Volkswagen emissions scandal", it is expected that this draft will pass through this process comparatively quickly.
Important Note: This article only provides a brief summary of the main points from the draft EU Regulation. Readers should be aware that this draft Regulation is almost 500 pages in length and covers a wide ranging and complicated subject area that has implications for every company involved in the automotive industry, whether they are vehicle manufacturers, component manufacturers, vehicle converters or bodybuilders.