Regulations Spotlight

EC Directive 2007/46/EC, also known as the Framework Directive, is the foundation on which the whole European Union type approval regime for motor vehicles and their trailers 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.

Between 2010 and 2013, the European Commission reviewed 2007/46/EC and its implementation and undertook a specific "Fitness Check" on this Directive. One of the main deficiencies noted during these reviews was that the current Directive does not include sufficient requirements on market surveillance, i.e. compliance checks on production vehicles and components being placed on the market to verify their compliance with the type approval requirements. Therefore, it was decided that a new Regulation should be drafted to repeal and replace 2007/46/EC which would include market surveillance requirements similar to those that had been introduced into the revised type approval framework Regulations on tractors and on motor cycles in 2013; EU Regulation No's 167/2013 and 168/2013 respectively.

It was while the European Commission were drafting the new Type Approval Framework Regulation for motor vehicles and their trailers that the highly publicised "emissions scandal" first came to light. Therefore, the European Commission have also attempted to address all of the issues that were raised by the "emissions scandal" in their drafting of this new Regulation.

A first draft of the new Regulation was published by the European Commission on 27th January 2016 and submitted to the European Council and European Parliament for their review and adoption. The deliberations of the European Council, the European Parliament and the European Commission and the subsequent negotiations between these three bodies have taken over two years to complete. However, on 14th June 2018, the new EU Regulation on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, EU Regulation No. 2018/858, was finally published in the Official Journal of the European Union.

Whilst this new Regulation does not contain any significant changes to the technical requirements applicable to vehicles, systems and components, it does contain major revisions to the applicable processes and procedures and introduces numerous additional checks to ensure the robustness of the type approval process. The following is a very brief summary of some of the main changes that have be introduced by this new Regulation:

• Designation of responsible Authorities - Each Member State is required to designate an Authority in their country that is responsible for type approval and an Authority that is responsible for market surveillance. Where one Authority is responsible for both activities, there must be a strict separation of roles and responsibilities and the two activities must be managed autonomously as part of separate structures. Each Member State must also review and assess the functioning of their Type Approval Authority and their Market Surveillance Authority at least once every four years and provide the results of this assessment to the Commission.

• Market surveillance requirements - New requirements on market surveillance are introduced 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. In each Member State, the designated Market Surveillance Authority must carry out compliance verification inspections and tests on vehicles and components placed on the market in their country. Each Market Surveillance Authority must carry out at least one compliance verification test for every 40,000 new motor vehicles registered in their Member State during the preceding year, with a minimum of five compliance verification tests per year. For Market Surveillance Authorities carrying out more than five compliance verification tests per year, at least 20% of their tests must be emissions tests. In addition to the testing undertaken by Market Surveillance Authorities, the European Commission will also undertake their own compliance verification inspections and tests on vehicles and components placed in the market anywhere within the European Union.

•  Assessments on Type Approval Authorities by the Commission - The European Commission will carry out assessments of the procedures put in place by each Type Approval Authority for the granting of type approvals, for carrying out conformity of production and for the designation and monitoring of Technical Services every five years and publish the results of these assessments.

• Forum for the Exchange of Information and Enforcement - The European Commission will establish, chair and manage a Forum for the Exchange of Information on Enforcement which will meet on a regular basis. This Forum will be attended by representatives from the Type Approval Authorities and Market Surveillance Authorities of each of the Member States. The Forum will 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.

• Responsibilities of manufacturers, manufacturer's representatives, importers and distributors - The new Regulation more clearly defines the specific responsibilities applicable to manufacturers, manufacturer's representatives, importers and distributors with regard to both type approval and market surveillance.

• Frequency of Conformity of Production checks - The new Regulation specifies that Type Approval Authorities must carry out Conformity of Production checks and tests on manufacturers at least once every three years unless a specific frequency for such Conformity of Production checks and tests is specified in the Regulatory Act for which Conformity of Production is being assessed.

• Termination of validity of whole vehicle type approval certificates - The Regulation introduces a new requirement on the termination of validity of whole vehicle type approvals. In the case of M1 and N1 category vehicles, if the type approval information package has not been updated for seven years, the issuing Type Approval Authority must verify that the vehicle type still complies with all of the applicable Regulatory Acts and terminate the validity of the type approval if the vehicle type does not comply with all of those Acts. This same requirement is applicable to whole vehicle type approvals for other categories of vehicle, but only if the type approval information package has not been updated for ten years.

• Certificates of Conformity in electronic format - The new Regulation still requires each vehicle to be issued with a paper format Certificate of Conformity. However, from 5th July 2026, the new Regulation requires manufacturers to make the Certificate of Conformity available as "structured data in electronic format". Precise details of the electronic format for the Certificate of Conformity will be specified within a separate Implementing Regulation to be adopted by the European Commission.

• Safeguard measures and recalls - The new Regulation includes more detailed 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.

• Access to Repair and Maintenance Information - The current requirements on the provision of access to onboard diagnostic (OBD) system information and other repair and maintenance information for independent operators are specified within the EU emissions Regulations applicable to light and heavy duty vehicles; (EC) No. 715/2007 and (EC) No. 595/2009 respectively. However, to ensure consistency in their application, these requirements are deleted from the emissions Regulations by this new Regulation. To replace them, enhanced requirements on the provision of access to onboard diagnostic (OBD) system information and other repair and maintenance information for independent operators, are included in the new Regulation.

• Designation, monitoring and review of Technical Services - To ensure the competency, impartiality and independence of Technical Services, the new 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.

• Penalties for non-compliance - The new 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 new Regulation's requirements which are effective, proportionate and dissuasive. 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.

This new Regulation enters into force on 4th July 2018. It applies to all new type approvals issued on or after 1st September 2020 and Directive 2007/46/EC is repealed on that same date.