Amendments to the EU vehicle type approval system and the exemption procedure for EU approval of new autonomous vehicle technology

By Lawrence Freeman

09-2020

Under the Whole Vehicle Type-Approval System ("WVTA"), a manufacturer can obtain certification for a vehicle type in one EU Member State and market it EU-wide without further tests. The certification is issued by a type-approval authority and the tests are carried out by the designated technical services.

EU Framework Directive 2007/46/EC (as amended) set out the safety and environmental requirements that motor vehicles have to comply with before being placed on the EU market. The Directive made the WVTA system mandatory for all categories of motor vehicles and their trailers.

The EU type-approval framework has been overhauled by Regulation (EU) 2018/858 which came into force on 1 September 2020. In the wake of the Diesel-gate scandal (where car manufacturers circumvented emissions standards), it is designed to increase 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.

In particular, the majority of EU 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 an EU 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 European Commission with national experts from other EU Member States, including on-site visits to testing facilities.

Other EU Member States will be able to challenge a designation when something is wrong. The European 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.

Under the previous system, the responsibility for ordering corrective measures for non-compliant vehicles lay with the EU Member State in which the type approval was granted. Under the new system, all national authorities as well as the European Commission are able to order such corrective measures.

EU Member States have the discretion to decide on the level of penalties to impose for infringements of type approval rules. The new vehicle type approval Regulation empowers the European Commission to impose administrative fines on manufacturers of up to €30,000 per non-compliant vehicle if no fine is being imposed by the EU Member State.

The European Commission has also proposed a "New Deal for Consumers" so that in a Diesel-gate scenario there will be a mechanism for victims of car manufacturers (that have sold non-compliant vehicles) to obtain financial compensation through a collective procedure in all EU Member States.

This new EU vehicle type approval Regulation maintains special type approval procedures for new technologies or new concepts – an EU exemption granted on the basis of a national ad-hoc safety assessment which can be used, for example, for new autonomous vehicle technology.

The European Commission recently published guidelines together with EU Member States to harmonize the national ad-hoc safety assessments for the exemption procedure for EU approval of automated vehicles.

The guidelines focus on vehicles on levels 3 and 4 of the Society of Automotive Engineers ("SAE") levels of autonomous driving and target several different areas, namely:

  • How the vehicle should act when it is in an automated driving mode;

  • How the vehicle should interact with the driver;

  • In what ways the vehicle should install event data recorders to register the operational status of the automated driving system, as well as the status of the driver to determine who was driving during an accident;

  • How to ensure that the vehicle protects the vehicle against hacking and ensures an appropriate cybersecurity level;

  • How safety assessments and tests for the vehicle should be carried out; and

  • What kind of information should be provided to users about the automated features of the vehicle (e.g. functional limitations, means to deactivate the automated driving mode, and user behavior to adopt in case of urgency).