From 1 September 2020, a new EU vehicle type-approval framework will be in place. It will significantly raise the quality level and independence of vehicle type-approval and testing, increase checks of cars that are already on the EU market and strengthen the overall system with European oversight.
The new rules were proposed by the Commission in the wake of the Dieselgate scandal, and a compromise with the European Parliament and Council was reached on 7 December 2017. The European Parliament voted on the amended proposal on 19 April 2018, and the Council is expected to formally adopt the legislation in the coming weeks, following which the Regulation will be published in the Official Journal.
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 or 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. In the future 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 are still paid directly by car manufacturers. The Commission had proposed to modify the remuneration system to avoid financial links between technical services and manufacturers, which could lead to conflicts of interest and compromise the independence of testing. This proposal was not agreed by the European Parliament and the Member States.
However, as a result of the new EU type-approval framework legislation, for vehicles that are already available on the market and for sale at the dealerships, all Member States have to make sure themselves that there is enough national funding available in each country to test a minimum number of vehicles. The recent past has proven that these so-called ‘market surveillance' checks by Member States were virtually non-existent, leading to the situation of some manufacturers not respecting the rules. By demanding that Member States test a minimum number of cars and requiring that the national authorities reserve sufficient funds to perform the checks, this situation will be fundamentally improved.
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, in the future, Member States and the Commission will 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 motor vehicles that have been registered. Although the focus is on emission testing, safety will also have to be checked. Given that in 2017 almost 17.5 million new motor vehicles were registered in the EU, this would mean that at least 435 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. Today, 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?
In the current system that will be replaced, the responsibility to remedy wrongdoings lies with the Member State in which the type-approval has been granted. Neither other Member States nor the Commission could initiate a recall. The Commission can only take action indirectly, as it did recently 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.
The Commission's proposal for an overhaul of the type-approval system suggests that it could impose sanctions on car manufacturers or technical services of up to € 30 000 per car. 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 system of administrative fines and their calculation needs to be specified by a Commission delegated act. 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.
What about consumer compensation?
The Commission is concerned by mass harm situations affecting the interest of consumers, as illustrated by the revelations in September 2015 when car manufacturers circumvented emissions standards. The Commission has proposed a "New Deal for Consumers" on 11 April 2018, with the aim to empower qualified entities to launch representative actions on behalf of consumers and to introduce stronger sanctioning powers for Member States' consumer authorities.
Even if vehicle type-approval is not explicitly listed in the proposal, consumers will have the possibility to obtain financial compensation through collective procedure in all Member States. This was not possible before. For example, in a Dieselgate-type scenario, victims of unfair commercial practices, such as misleading advertising by car manufacturers that have sold vehicles that are not in compliance with the EU legislation, will be able to obtain remedies collectively through a representative action under the proposed measures.
How will the EU ensure that national authorities are doing their job properly?
In the future, 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. The tasks and composition of the Forum will be further specified by a Commission delegated act. 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.
In parallel, the Commission continues to monitor whether EU law in this area was correctly enforced by Member States in the past. It opened infringement procedures against eight Member States for breaching EU type approval legislation in December 2016 and May 2017.
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 maintains 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 on 26 January 2017, the European Commission published guidance 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, RDE and 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 necessarily 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.
When will the new framework start to apply?
The new Regulation will apply as from 1 September 2020 for Member States, technical services and for new vehicle models to be introduced on the EU market. The specific obligations to check new vehicles made available on the EU market, i.e. the minimum number of market surveillance checks by each Member State and the possibility for the Commission to run its own checks, will start to apply from the same date.
What else is the Commission doing? – A snapshot
The new Type Approval Regulation represents one of many important steps in the Commission's work for a clean, sustainable and competitive car industry: This includes more robust and realistic testing methods for measuring both nitrogen oxides (NOx) and CO2 emissions from cars, strict air quality standards that Member States have to comply with, and a number of measures to foster low-emission mobility (i.e. action plan for alternative fuel infrastructure, development of full value chain of battery production).
The Commission has opened infringement procedures against eight Member States for breach of EU type approval legislation in December 2016 and May 2017, and continues to monitor whether EU law in the area is being properly enforced. The Commission has called on Member States to take all necessary measures to ensure that non-compliant cars are fixed or withdrawn from circulation. To that effect the Commission has been collecting data by Member States on the progress in the recalls of non-compliant cars and has published the different recall rates. The Commission has supported Member States' work with guidance and a common testing methodology on defeat devices to ensure consistency of results of national investigations. The Commission ensures that competition rules are respected and has proposed a new deal for consumers.
New and improved car emissions tests – FAQs
Political agreement on type approval framework (7 December 2017) – press release
Agenda for transition towards clean, competitive and connected mobility:
Commission communication (20 July 2016) – strategy for low emission mobility
Commission communication (31 May 2017) – Europe on the Move