The EU Regulation on the approval and market surveillance of motor vehicles started to apply from 1 September, 2020.
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From 1 September 2020, the new EU vehicle type-approval framework starts to apply across the EU. It significantly raises the quality level and independence of vehicle type-approval and testing, increases checks of cars that are already on the EU market and strengthens the overall system with European oversight.
This reform is only part of the Commission’s wider work for a clean, sustainable and competitive car sector as laid down in the Commission Communication ‘Europe on the Move’. Commission initiatives include air quality and CO2 standards, the improvement of emission testing for cars and the support for alternative fuels and battery production.
How will the independence of quality of testing be reinforced?
The majority of Member States designate technical services to test and inspect new car models. From now on, these technical services will be regularly and independently audited, on the basis of stringent performance criteria, to obtain and maintain their designation by a Member State for testing and inspecting new car models.
National authorities will have to use accreditation bodies to assess and certify the full remit of technical services or otherwise technical services to be designated will be subject to joint audits by the Commission with national experts from other Member States, including on-site visits to testing facilities.
Other Member States will be able to challenge a designation when something is wrong. The Commission will have the power to suspend, restrict or withdraw the designation of technical services that are underperforming and too lax in applying the rules.
Who will pay for the testing?
When a manufacturer is preparing the launch of a new model on the EU market, the technical services that perform the official type-approval testing will continue to be paid directly by car manufacturers. As regards vehicles that are already available on the market and for sale at the dealerships, the new EU type approval framework requires that all Member States make sure that there is enough national funding available in each country to test a minimum number of vehicles. This will fundamentally improve the situation compared to the past, when market surveillance checks by Member States were virtually non-existent, leading to a situation where some manufacturers did not respect the rules.
Will all cars on our roads be subject to these tests?
Type-approval focuses on pre-market compliance checks of vehicles that come off the manufacturing assembly line. The manufacturer makes available about a dozen or more pre-production cars that are equal to the final product. If all relevant requirements are met, the national authority delivers an EU vehicle type-approval certificate to the manufacturer authorising the sale of the vehicle type in the EU. Every vehicle produced is accompanied by a certificate of conformity which is like the car’s birth certificate and indicates that the vehicle corresponds to an approved type. On the basis of this document, the vehicle can be registered.
Additionally to testing these prototypes, Member States and the Commission will from now on carry out compliance verification spot-checks of vehicles already on the market.
All Member States have to carry out a verification test on at least one car for every 40,000 new registered motor vehicles. Although the focus is on emission testing, safety will also be checked. Given that in 2019 almost 17.9 million new motor vehicles were registered in the EU, this would mean that at least 447 vehicle market surveillance checks would have to be carried out spread over the Member States to meet the new obligations.
The Commission will carry out compliance and conformity checks through its Joint Research Centre. It will be the technical arm of the supervisory system of the Commission and will carry out selected regulatory emissions testing in the laboratory and on the road, as well as perform vehicle safety checks in line with the applicable regulations. This will allow the Commission to make an informed and unbiased judgement on any non-compliance. There is no minimum number of checks for the Commission, but future cases will be selected on the basis of risk assessment, suspicion and indication of compliance issues in the field.
What happens if a vehicle fails the type-approval test?
If a new vehicle type fails to pass the type-approval test, then it is not allowed to be placed on the market.
What happens if a car already on the market is not actually compliant?
All national authorities as well as the Commission will be able to order corrective measures and order recalls at no cost to the consumers as a result of the new rules that will apply as from 1 September 2020. Up to now, all recall actions have to be coordinated by the Member State that has actually type-approved the vehicle in question. Experience has shown us that this situation is far from optimal to have cars fixed quickly on a large enough scale.
Under the new rules, Member States can also levy fines when they find something is wrong through their own checks. They are required to make sure that their penalties are proportionate and dissuasive to deter car manufacturers from breaking the law. However, the Commission can also issue fines of up to 30 000 per to make sure this is guaranteed.
Persons that have already repaired their vehicle at their own cost, when it is later shown that the vehicle has become subject to a manufacturer’s recall, will have to be reimbursed as part of the new rules.
Who can order the recall?
Up to now, the responsibility to remedy wrongdoings has lied with the Member State in which the type-approval has been granted. Other Member States or the Commission could not initiate a recall. The Commission can only take action indirectly, as it did in the past by referring Germany to the Court of Justice of the EU over its failure to take remedial action to comply with the Directive on Mobile Air Conditioning.
Under the new Regulation, all national authorities as well as the Commission will carry out compliance verification checks on vehicles already placed on the market to verify that they comply with applicable EU legislation. Where tests and investigations show non-compliance, the 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 they can also take similar action. The Commission will also have the right to order recalls or market withdrawals. This will allow the remedial measure to have an EU wide effect, which does not currently exist. The Commission will evaluate and decide on whether the measures taken by a manufacturer to remedy the situation are sufficient.
What level of penalties do car manufacturers face if they break the law?
Member States have the discretion to decide on the exact penalties system, including the level of penalties, as long as these are effective, proportionate and dissuasive. Typically Member States have introduced a range of penalties levels depending on the type of infringement of the law. What level of sanctions is applied within that bracket is at the Member State’s discretion and will be decided case by case.
In addition, the new Regulation empowers the Commission to levy penalties in case of non-compliant vehicles on the EU market. Car manufactures who are in breach of type-approval legislation (e.g. defeat devices or fake declarations) risk administrative fines of up to 30 000 per vehicle which can be levied by the Commission if no fine is being imposed by the Member State. Fines can also be imposed on technical services if they fail to carry out the tests rigorously enough. The level of fines will depend on an assessment of the gravity and extent of the non-compliance.
The Regulation maintains the existing obligation for Member States to lay down rules for effective, proportionate and dissuasive penalties. In the future, Member States have to inform the Commission every two years on the penalties they have imposed. The type approval specific legislation complements the general civil and criminal law of Member States that may be applicable if allegations of fraud are confirmed.
How will the EU ensure that national authorities are doing their job properly?
From now on, Member States will be subject to greater scrutiny. They will have to review regularly the functioning of their market surveillance activities and make the results publicly available. National type-approval authorities will be subject to peer evaluations if they assess their own technical services instead of the national accreditation bodies, but they will always be subject to an independent assessment carried out directly by the Commission to ensure that the relevant rules are implemented and enforced rigorously across the EU.
An Enforcement Forum will coordinate the network of national authorities responsible for type-approval and market surveillance. It will also have an advisory role to promote good practices, exchange of information on enforcement problems and penalties, cooperation, development of working methods and tools, development of an electronic information exchange platform, evaluation of harmonised enforcement projects and joint audits. Member States will nominate their representatives in the Forum. Existing market surveillance platforms, such as Rapid Alert System (RAPEX) and the Information and Communication System on Market Surveillance (ICSMS) will be further used and strengthened for exchange of information of market surveillance activities.
Will this new legislation avoid instances of car manufacturers using defeat devices?
Defeat devices are already illegal and Member States have a standing obligation to police and enforce this ban. Defeat devices were banned by Directive 98/69/EC and later by the currently applicable Regulation 715/2007/EC. Article 3 of Regulation 715/2007/EC defines defeat device as any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use.
The new Regulation does not change this definition of defeat devices, but tightens the screws further. It obliges manufacturers to provide access to data of vehicle software for the purpose of carrying out external checks. This will complement the Real Driving Emissions package, which introduces an obligation for the car manufacturer to declare its emissions reduction strategy. That will widen the legal basis for action in case of any irregularities. More widely, testing emissions in real driving conditions will help to a great extent limit the risk of cheating with a defeat device, and prevent that manufacturers exploit flexibility within the laboratory based test procedure.
In the context of these investigations, some Member States have concluded that a number of manufacturers use emission strategies that can be justified and legal because they are needed to protect the engine. The ban on defeat devices foresees an exemption (both under EU and US law) for when the need for the device is justified to protect the engine against damage or accident and to ensure the safe operation of the vehicle. It is up to the manufacturer to demonstrate to the national authority that any use of defeat devices is covered by one of the exceptions and is technically necessary.
That is why new rules adopted new rules (RDE 4 Regulation 2018/1832) to help Member States evaluate if car manufacturers use defeat devices or other strategies that lead to higher vehicle emissions outside of the test cycle and analyse whether they are technically justified. A car manufacturer using emissions abatement strategies should be able to provide a technical justification for questions such as: Is the increase of emissions kept at the lowest possible level? Is there no better technology or design on the market that would allow for improved emission control or safer operation of the engine? Can the risk of sudden and irreparable engine damage be appropriately demonstrated and documented?
How does this Regulation work together with RDE and WLTP legislation?
The new type-approval regulation is a framework that governs the main components of vehicle type-approval and all the underlying topics that are relevant for such approval.
While they are both very important, emissions testing based on Real Driving Emissions (RDE) and Worldwide Harmonised Light Vehicles Test Procedure (WLTP), are merely two aspects of a much broader set of technical requirements for environmental and safety performance (e.g. emissions, lighting, crashworthiness, breaking, pedestrian protection) to overall approve a car. These systems are tested independently from each other, on complete (prototype) vehicles against detailed technical prescriptions and by following a similar procedural logic.
Does the Regulation only apply to emissions testing?
Before authorising a vehicle type to be placed on the EU market, national authorities need to certify compliance with safety rules (installation of lights, braking performance, stability control, crash tests with dummies), emissions limits (see below) and production requirements (of individual parts and components, such as seats or steering wheel airbags). The requirements that need to be met differ case by case, depending on the category of vehicle and other classifications.
FAQs on car emissions testing (May 2018)
Source: European Commission
