Explanatory Memorandum to COM(2018)397 - Complement to EU type-approval legislation with regard to the withdrawal of the United Kingdom from the Union

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dossier COM(2018)397 - Complement to EU type-approval legislation with regard to the withdrawal of the United Kingdom from the Union.
source COM(2018)397 EN
date 04-06-2018


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The United Kingdom on 29 March 2017 submitted the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means that, unless a ratified withdrawal agreement establishes another date, all Union primary and secondary law will cease to apply to the United Kingdom from 30 March 2019, ('the withdrawal date'). The United Kingdom will then become a third country.

Subject to any transitional arrangement that may be contained in a possible withdrawal agreement, the EU legislative framework governing type approval for a number of products will no longer apply to the United Kingdom as of the withdrawal date, notably:

·Directive 2007/46/EC concerning the type-approvals of motor vehicles and trailers (to be replaced by a Regulation which will be applicable as from 1 September 2020);

·Regulation (EU) No 168/2013 concerning the type-approval of two- and three-wheeled vehicles and quadricycles;

·Regulation (EU) No 167/2013 concerning the type-approval of agricultural and forestry vehicles; and

·Regulation (EU) 2016/1628 concerning the type-approval of engines for use in non-road mobile machinery.

This also means that the United Kingdom type-approval authority will cease to be an EU type-approval authority and will no longer be able to fulfil any of the powers and obligations of a type-approval authority under EU legislation. Manufacturers who obtained approvals in the United Kingdom in the past will thus need to obtain new approvals from EU-27 type approval authorities, including for products already in production, in order to ensure continued compliance with EU legislation and retain access to the Union market.

While the legal framework for these products sets procedural requirements harmonising the way in which type-approvals are granted across the EU, some safeguards make it difficult for relevant manufacturers to take the necessary measures to ensure regulatory compliance and business continuity after the EU acquis ceases to apply to the United Kingdom.

For example, the EU type-approval system allows manufacturers to choose freely the type-approval authority to which they submit their type-approval applications. However, it does not allow for the change of the authority once an approval has been granted, and it is not possible for one authority to amend the approval issued by another authority. Equally, the type-approval legislation requires that a type-approval authority may only accept test reports from technical services which the Member State to whom it belongs has previously designated and notified to the Commission. Furthermore, it is a fundamental principle of the type approval system that a product may only be approved against the requirements applicable to new types (as opposed to new vehicles) at the time when the approval is granted. Finally, once the United Kingdom type-approval authority has ceased to be an EU type-approval authority, it can no longer ensure the conformity of production and in service conformity of products already in circulation. A responsible type-approval authority is also needed for the recall of a product that is not in conformity with safety or environmental requirements.

These issues create significant legal uncertainty for manufacturers with United Kingdom type-approvals. The present proposal aims to address them by modifying temporarily and in a very targeted manner the existing rules to allow concerned manufacturers to obtain new EU-27 approvals that replace their existing UK type-approved products. The proposal:

·Explicitly allows concerned manufacturers to apply to an EU-27 type-approval authority for new approvals for existing types;

·Allows that tests underpinning the UK type approvals do not have to be repeated because the technical service was not designated and notified by the EU-27 type approval authority before;

·Provides that such approvals may be granted if the requirements for new vehicles, systems, components and separate technical units are met rather than those for new types;

·Proposes to help identify new type-approval authorities for those products already on the market prior to the withdrawal, to avoid that no authority would be in charge of carrying out in-service conformity checks or issuing a possible future recall.

The provisions proposed in the proposal will not lower the requirements regarding the safety or environmental performance of the vehicles, systems, components or separate technical units. It will not grant any advantages to manufacturers with UK type-approvals, compared to manufacturers with EU-27 type-approvals. On the contrary, the initiative will simply allow manufacturers to continue producing their products in compliance with applicable legal requirements without interrupting their existing production, which could have caused significant social and economic impacts. In facilitating manufacturers’ compliance with EU law, the initiative will also ensure the protection of consumers and citizens.

• Consistency with existing policy provisions in the policy area

This proposal will be lex specialis to the four acts listed in its scope only to the extent it deviates from them; the general provisions of these acts will otherwise continue to apply. This proposal is thus fully consistent with the existing legislation.

• Consistency with other Union policies

This proposal is fully consistent with the Council mandate for the negotiations with the United Kingdom on its withdrawal from the Union.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis of the proposal is Article 114 of the Treaty on the Functioning of the European Union (TFEU).

• Subsidiarity (for non-exclusive competence)

As the proposed act would complement four Union acts and modify their content, this could only be achieved through action at Union level and not through action at Member-State level.

• Proportionality

The proposal is considered proportionate as it provides for the necessary legal change and at the same time does not go beyond what it necessary to achieve the objectives of allowing manufacturers with United Kingdom type-approvals to comply with type-approval legislation. It provides for the necessary legal conditions to uphold, to the extent possible, a level playing field among manufacturers.

 •Choice of the instrument

Given that the act defines specific rules to address a very specific and one-off situation, it will exceptionally not modify these acts, but apply as a stand-alone act for a limited duration. As three of the concerned acts are regulations and one is a directive (soon to be replaced by a regulation applicable as of 1 September 2020), a regulation seems the only adequate form of act, which allows Member States to deviate from the otherwise applicable relevant general rules. A regulation also best responds to the urgency of the matter.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable.

• Stakeholder consultations

The challenges arising for type-approval from the United Kingdom’s withdrawal from the EU were raised and discussed at several meetings with Member States. They were also brought to the attention of the Commission by manufacturers and associations representing them.

Stakeholders had the possibility to provide feedback on the initiative via the Better Regulation portal (“Have your say”) of the European Commission.

During the feedback period from 26 April 2018 to 10 May 2018, 15 stakeholders provided comments, among them nine European stakeholder associations, three UK associations, two manufacturers and one citizen. The intention to create more legal certainty was generally appreciated. Several comments concerned issues of a horizontal nature for all types of goods, the ongoing negotiations on the withdrawal agreement and the future relationship of the Union with the United Kingdom. The feedback was taken into consideration in the preparation of the proposal as relevant.

• Collection and use of expertise

Oral and written feedback from manufacturers and Member States, see above.

A legal analysis of the type-approval legislation underpinning two notices to stakeholders: Guidance to stakeholders on impact on type-approval of motor vehicles of 8 February 2018 and Guidance to stakeholders on impact on type-approval of certain vehicles and engines of 28 March 2018.

• Impact assessment

Not applicable.

• Fundamental rights

This proposal has no consequences for the protection of fundamental rights

4. BUDGETARY IMPLICATIONS

Not applicable.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Not applicable.