EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP AND SME’s
Brussels, 14 July 2020
REV1 – replaces the notices dated 8 February 2018 (“Type approvals (automotive vehicles)”) and
28 March 2018 (“Type approvals (vehicles and engines)”) and the Q&A document dated 6 March 2019

NOTICE TO STAKEHOLDERS

WITHDRAWAL OF THE UNITED KINGDOM AND EU RULES IN THE FIELD OF TYPE-

APPROVAL OF VEHICLES, SYSTEMS, COMPONENTS AND  TECHNICAL UNITS

 

INTRODUCTION

Since 1 February 2020, the United Kingdom has withdrawn from the European Union and has become a “third country”.1 The Withdrawal Agreement2 provides for a transition period ending on 31 December 2020. Until that date, EU law in its entirety applies to and in the United Kingdom.3
During the transition period, the EU and the United Kingdom will negotiate an agreement on a new partnership, providing notably for a free trade area. However, it is not certain whether such an agreement will be concluded and will enter into force at the end of the transition period. In any event, such an agreement would create a relationship which in terms of market access conditions will be very different from the United Kingdom’s participation in the internal market,4 in the EU Customs Union, and in the VAT and excise duty area.

Therefore, all interested parties, and especially economic operators, are reminded of the legal situation as of the end of the transition period (Part A below). This notice also explains certain relevant separation provisions of the Withdrawal Agreement (Part B below), as well as the rules applicable in Northern Ireland as of the end of the transition period (Part C below).

1 A third country is a country not member of the EU.

2 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 7 (“Withdrawal Agreement”).

3 Subject to certain exceptions provided for in Article 127 of the Withdrawal Agreement, none of which is relevant in the context of this notice.

4 In particular, a free trade agreement does not provide for internal market concepts (in the area of goods and services) such as mutual recognition, the “country of origin principle”, and harmonisation. Nor does a free trade agreement remove customs formalities and controls, including those concerning the origin of goods and their input, as well as prohibitions and restrictions for imports and exports.

A. LEGAL SITUATION AFTER THE END OF THE TRANSITION PERIOD

After the end of the transition period, the EU rules in the field of vehicles, systems, components and separate technical units (hereafter collectively referred to as “motor vehicles”), and in particular:

− Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles,6 repealing with effect from 1 September 2020 Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers and of systems, components and separate technical units intended for such vehicles;7

− Regulation (EU) No 167/2013 of the European Parliament and of the Council of 5 February 2013 on the approval and market surveillance of agricultural and forestry vehicles;8
− Regulation (EU) No 168/2013 of the European Parliament and of the Council of 15 January 2013 on the approval and market surveillance of two- or three-wheel vehicles and quadricycles;9
− Regulation (EU) 2016/1628 of the European Parliament and of the Council of 14 September 2016 on requirements relating to gaseous and particulate pollutant emission limits and type-approval for internal combustion engines for non-road mobile machinery10, amending and repealing Directive 97/68/EC11 (hereafter collectively referred to as “EU type-approval legislation”)

5 https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/future- partnership/preparing-end-transition-period_en

6 OJ L 151, 14.6.2018, p. 1.

7 OJ L 263, 9.10.2007, p. 1.

8 OJ L 60, 2.3.2013, p. 1.

9 OJ L 60, 2.3.2013, p. 52.

10 OJ L 252, 16.9.2016, p.53.

11 Directive 97/68/EC of the European Parliament and of the Council of 16 December 1997 on the approximation of the laws of the Member States relating to measures against the emission of gaseous

no longer apply to the United Kingdom.12 This has in particular the following consequences:

1. CONSEQUENCES FOR THE IDENTIFICATION OF ECONOMIC OPERATORS

Union type-approval legislation provides that “economic operator” means the manufacturer, the manufacturer’s representative, the importer or the distributor.13

According to Union type-approval legislation, the importer is the economic operator established in the EU who places on the EU market a motor vehicle that has been manufactured in a third country. After the end of the transition period, a manufacturer or importer established in the United Kingdom will no longer be considered as an economic operator established in the EU. As a consequence, an economic operator established in the EU who, prior to the end of the transition period, was considered as an EU distributor of motor vehicles received from the United Kingdom, will become an importer for the purposes of Union type-approval legislation in relation to such motor vehicles after the end of the transition period. This operator will have to comply with the more stringent obligations applicable to an importer, as regards in particular verification of product compliance and the indication of his contact details on the product or its label.14

Manufacturers established outside the EU must appoint a single representative established in the EU to represent them before the Member State type-approval authorities and for purposes of market surveillance. A single representative may be appointed for both purposes.15
After the end of the transition period, manufacturers’ representatives established in the United Kingdom will no longer be considered as established in the EU and will lose their status under EU type-approval legislation, regardless of when motor vehicles were placed on the market. Therefore, manufacturers need to ensure that, after the end of the transition period, their appointed representatives are established in the EU.

The manufacturer must immediately inform the relevant national type-approval and market surveillance authorities of any change concerning its single representative. Where specific databases exist, such as the European Type Approval Exchange

and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery, OJ L 59, 27.2.1998, p. 1.

12 Regarding the applicability of these Regulations to Northern Ireland, see Part C of this notice.

13 Article 3, points 40-44, of Regulation (EU) 2018/858; Article 3, points 25, 26, 41 to 43, of Regulation (EU) No 167/2013; Article 3, points 47 to 51, of Regulation (EU) No 168/2013; Article 3, points 49 to 53, of Regulation (EU) 2016/1628.

14 Article 16 and 17 of Regulation (EU) 2018/858; Articles 11 and 12 of Regulation (EU) No 167/2013; Articles 12 and 13 of Regulation (EU) No 168/2013; Articles 11 and 12 of Regulation (EU) 2016/1628.

15 Article 13(4) of Regulation (EU) 2018/858; Articles 8(4) and 8(5) of Regulation (EU) No 167/2013; Articles 9(4) and 9(5) of Regulation (EU) No 168/2013; Articles 8(10) and 8(11) of Regulation (EU) 2016/1628.

System (ETAES), the information on single representatives can be recorded in those databases and any change will therefore be traceable there.

2. CONSEQUENCES FOR TYPE-APPROVALS AND TYPE-APPROVAL AUTHORITIES – GENERAL ASPECTS

Motor vehicles within the scope of Regulations (EU) 2018/858, (EU) No 167/2013 and (EU) No 168/2013 may only be placed on the market, registered, and entered into service if they are accompanied by a valid certificate of conformity issued by the manufacturer attesting that the vehicles have been manufactured in conformity with a EU type-approval granted by a Member State authority.16 17

Engines for non-road mobile machinery within the scope of Regulation (EU) 2016/1628 or non-road mobile machinery in which such engines are installed may only be placed on the market if the engine is covered by a valid EU type-approval18 or if they fall under the exemptions and transitional provisions applicable to engines or vehicles and non-road mobile machinery in which such engines are installed.19

After the end of the transition period, the United Kingdom approval authority will cease to be an EU approval authority under the Union type-approval legislation. As a result, as of the end of the transition period it will not be possible for a manufacturer to place on the EU market:

(i) motor vehicles within the scope of Regulations (EU) 2018/858, (EU) No 167/2013 and (EU) No 168/2013 accompanied by a certificate of conformity referring to a type-approval granted by the United Kingdom approval authority formerly competent under Union type-approval legislation;

(ii) engines for non-road mobile machinery or non-road mobile machinery in which such engines are installed for which a type-approval was granted by the United Kingdom approval authority formerly competent under Union type- approval legislation.

After the end of the transition period, the United Kingdom approval authority will also no longer be in a position to perform any of the monitoring and supervisory

16 Articles 6(4), 36 and 48 of Regulation (EU) 2018/858; Articles 33 and 38 of Regulation (EU) No 167/2013 and Articles 6(2), 38 and 43 of Regulation (EU) No. 168/2013.

For the definition of “approval authority”, see Article 3, point 36, of Regulation (EU) 2018/858; Article 3, point 27 of Regulation (EU) No 167/2013; Article 3, point 56, of Regulation (EU) No 168/2013.

17 This is without prejudice to the application of the provisions on the placing on the market, registration and entry into service of end-of-series vehicles: Article 49 of Regulation (EU) 2016/1628, Article 39(3) of Regulation (EU) No 167/2013 and Article 44(3) of Regulation (EU) No 168/2013.

18 Article 5(3) of Regulation (EU) 2016/1628. For the definition of “approval authority”, see Article 3, point 55, of Regulation (EU) 2016/1628.

19 Article 10(7) of Directive 97/68/EC, Article 34(7) and (8) or Article 58(5) to (11) of Regulation (EU) 2016/1628, and in acts adopted on the basis of Article 19(6), Article 20(8), Article 28(6) and Article 53(12) of Regulation (EU) No 167/2013 allowing the placing on the market of such engines, vehicles and non-road mobile machinery without the requirement of a valid type-approval

functions and activities of an approval authority for the purposes of Union type- approval legislation (e.g. in relation to conformity of production or in-service conformity) with respect to type-approvals it granted prior to the end of the transition period. Moreover, the United Kingdom approval authority will no longer be able to issue revisions or extensions to such approvals on the basis of Article 34 of Regulation (EU) 2018/858, Article 30 of Regulation (EU) No 167/2013, Article 35 of Regulation (EU) No 168/2013 or Article 28 of Regulation (EU) 2016/1628, respectively.

3. GRANTING OF UNION TYPE-APPROVALS REPLACING UK TYPE-APPROVALS IN ACCORDANCE WITH REGULATION (EU) 2019/26

On 8 January 2019, the European Parliament and the Council adopted Regulation (EU) 2019/26 complementing Union type-approval legislation with regard to the withdrawal of the United Kingdom from the Union.20
Article 4 of Regulation (EU) 2019/26 provides that a manufacturer holding a valid UK type-approval may, until the Union type-approval legislation ceases to apply to and in the United Kingdom, i.e. until the end of the transition period, submit an application to a Union type-approval authority for a Union type-approval of the same type.21
3.1. New Union type-approval granted and taking effect before the end of the transition period

Under this scenario, pursuant to Article 5(5) of Regulation (EU) 2019/26, the old UK type-approval becomes invalid on the day preceding the day on which the new Union type-approval takes effect.

Article 5(6), third subparagraph, of Regulation (EU) 2019/26 provides that motor vehicles produced on the basis of a UK type-approval which has become invalid as a result of the granting of a Union type-approval before the end of the transition period may be placed on the market, registered and entered into service in the Union until Union type-approval legislation ceases to apply to and in the United Kingdom. Where the UK type-approval becomes invalid before that date for other reasons, the motor vehicles can only be placed on the market, registered and entered into service in the Union until the date on which the Union type-approval becomes invalid. For vehicles, manufacturers will have to indicate the new Union type-approval number in a supplement to the Certificate of Conformity.

Recital 17 in the preamble to Regulation (EU) 2019/26 clarifies that, “since the moments of placing on the market, of registration, and of entry into service can differ, the moment when the first of those steps has been undertaken should be used to determine the time limits set out in this

20 OJ L 8, 10.1.2019, p. 1.

21 According to Article 3 of Regulation (EU) 2019/26, “Union type-approval authority” means a type- approval authority of a Member State other than the United Kingdom, and “Union type-approval” means an EU type-approval granted by a Union type-approval authority in accordance with this Regulation.

Regulation.” Accordingly, motor vehicles placed on the market before the end of the transition period under the conditions set out in Article 5(6), third subparagraph, may be registered and entered into service also on or after that date.

3.2. New Union type-approval granted on or after the date when the transition period ends

Pursuant to Article 5(5) of Regulation (EU) 2019/26, the old UK type- approval becomes invalid at the latest on the day on which the Union type- approval legislation ceases to apply to and in the United Kingdom, i.e. at the end of the transition period.

In light of Recital 17 in the preamble to Regulation (EU) 2019/26, if a Union type-approval authority is not able to process all the applications of different manufactures on time, i.e. prior to the end of the transition period and, as a consequence, the new Union type-approval, replacing the previous UK type- approval, is issued only on or after the date when the transition period ends, the following applies:

– Motor vehicles produced on the basis of a UK type-approval for which a Union type-approval for the same type has been requested in accordance with Article 4(1) of Regulation (EU) 2019/26 and which have been placed on the EU market before the end of the transition period may be registered and enter into service also on or after that date, pending the granting of the new Union type-approval. For vehicles, manufacturers will have to present proof to the competent authorities of the Member State where registration and entry into service is sought that they have submitted an application to a Union approval authority for a Union type- approval of the same type in accordance with Article 4(1) of Regulation (EU) 2019/26.22

– As of the end of the transition period, production of motor vehicles intended to be placed on the EU market can only take place on the basis of a type-approval granted by an EU approval authority.

4. CLARIFICATION ON THE (IN)VALIDITY OF TYPE-APPROVALS ISSUED UNDER
DIRECTIVE 97/68/EC

Both Recital 20 and Article 7 of Regulation (EU) 2019/26 are based on the assumption that the type-approvals, which fall under the exemptions and transitional provisions provided in either Directive 97/68/EC or Regulation (EU) 2016/1628, have become invalid.

Directive 97/68/EC does not contain an Article equivalent to Article 30 of Regulation (EU) 2016/1628 that specifies when type-approvals become invalid.

22 Alternatively, manufacturers and other economic operators concerned may rely on the separation provisions of the Withdrawal Agreement on goods placed on the market, see Part B of this Notice.

However, Article 10(2) of Directive 97/68/EC contained an end-of-series provision that relied upon the principle that a type-approval issued for an engine category of a given emission stage becomes invalid from the date of mandatory application, for the purposes of the placing on the market, of the subsequent emission stage in Article 9(4) of that Directive.

Therefore, type-approvals granted under Directive 97/68/EC are considered to become invalid through the mandatory application of new emission requirements for the placing on the market. This is in line with the provisions of Article 7 of Regulation (EU) 2019/26.

B. RELEVANT SEPARATION PROVISIONS OF THE WITHDRAWAL AGREEMENT

Article 41 of the Withdrawal Agreement provides that an existing and individually identifiable good lawfully placed on the market in the EU or the United Kingdom before the end of the transition period may be further made available on the market of the EU or of the United Kingdom and circulate between these two markets until it reaches its end- user. Where provided in the applicable provisions of EU law, such a good may also be put into service in the EU or in the United Kingdom.

The notion of placing on the market applies to individual products. Accordingly, this provision will apply only to those individual products which have been placed on the market in the EU or the UK before the end of the transition period, but not to the type or series of products in a general manner.

The economic operator relying on that provision bears the burden of proof of demonstrating on the basis of any relevant document that the good was placed on the market in the EU or the United Kingdom before the end of the transition period.23 Such proof can be given on the basis of documents ordinarily used in business transactions (e.g. contract of sale concerning goods which have already been manufactured, invoice, documents concerning the shipping of goods to distribution or similar commercial documents). There is no need to create a new type of document for this purpose. In practice, such proof will need to be given in case of checks upon importation into the EU or the UK or in case of checks by market surveillance authorities. The documentary evidence provided must make it possible to verify that it corresponds to the individual goods and quantity presented to customs or checked by market surveillance authorities, for example, with the reference to the specific identification element(s) of the goods.

For the purposes of that provision, “placing on the market” means the first supply of a good for distribution, consumption or use on the market in the course of a commercial activity, whether in return for payment or free of charge.24 “Supply of a good for distribution, consumption or use” means that “an existing and individually identifiable good, after the stage of manufacturing has taken place, is the subject matter of a written or verbal agreement between two or more legal or natural persons for the transfer of ownership, any other property right, or possession concerning the good in question, or is the subject matter of an offer to a legal or natural person or persons to conclude such an

23 Article 42 of the Withdrawal Agreement.

24 Article 40(a) and (b) of the Withdrawal Agreement.

agreement.”25 “Putting into service” means “the first use of a good within the Union or the United Kingdom by the end user for the purposes for which it was intended […].”26
This means that a motor vehicle placed on the UK market according to this definition before the end of the transition period on the basis of a UK-granted type approval can still be made available (e.g. can continue to be supplied for distribution or use), registered and entered into service in the EU after the end of the transition period, and vice-versa, with no need for a new type-approval, re-labelling / re-marking or product modifications, until it reaches its end-user.

Situations which are considered as placing on the market include, for instance:

• Contract of sale from manufacturer to importer, distributor (also intra-group, provided a genuine transaction can be identified) or final customer, where the manufacturing of that good has been completed;
• On-line sales: only when the customer receives confirmation of his order which identifies the specific good already manufactured and subject of the transaction, ready to be shipped to the customer.

Conversely, the following situations are not considered as placing on the market:

• Pre-ordered goods, not yet manufactured
• Contract for the supply of fungible goods (e.g. x units of product y, not individually identifiable)
• Goods manufactured and held in the manufacturer’s stock, but not yet supplied for distribution, consumption or use
• Generic offer of a product on-line (only after an order by a customer has been placed and confirmed, the specific good which is the subject of the transaction and is ready to be shipped is considered to have been placed on the market).

Same as above. This example concerns a multistage vehicle where the first stage comprises the chassis-cab (i.e. an incomplete vehicle). In case of a truck, a chassis-cab may be type-approved as the first stage for a vehicle manufacturer, and a bodybuilder (i.e. third party) holds the approval for a subsequent second and final stage. The incomplete vehicle has been placed on the EU market before the end of the transition period.
EXAMPLE 2: Motor vehicles manufactured on the basis of a UK-granted type-approval in the EU, the UK or in any other third country, sold to an EU customer before the end of the transition period, after the manufacturing stage was completed, but not yet physically delivered to the EU customer on that date:
 A non-road mobile machinery engine manufactured in the US on the basis of a UK- granted type-approval is sold to a Belgian importer or original equipment manufacturer of non-road mobile machinery on 15 December 2020 but will only arrive at Belgian customs on 15 January 2021.
Same as the goods under Example 1. The date of placing on the EU market is the date of the transaction (first supply) between the US manufacturer and the EU importer or original equipment manufacturer after the manufacturing stage was completed. Placing on the market does not require physical delivery of the product.
EXAMPLE 3: Motor vehicles manufactured in a third country on the basis of a UK- granted type-approval, sold to a UK importer before the end of the transition period but not yet physically delivered to him on that date and subsequently sold to an EU customer after the end of the transition period.
 A car or motorcycle manufactured in Japan based on a UK-granted type-approval and accompanied by a valid certificate of conformity is sold to a UK importer on 15 December 2020 and arrives at UK customs on 15 January 2021. The UK importer then sells it to a Dutch customer on 30 January 2021 and the car or motorcycle arrives at Dutch customs on 15 February 2021.
Same as the goods under Example 1. The date of placing on the UK market is the date of the transaction (first supply) between the Japanese manufacturer and the UK importer. Placing on the market does not require physical delivery of the product.

C. APPLICABLE RULES IN NORTHERN IRELAND AFTER THE END OF THE TRANSITION PERIOD

After the end of the transition period, the Protocol on Ireland/Northern Ireland (“IE/NI Protocol”) applies.27 The IE/NI Protocol is subject to periodic consent of the Northern Ireland Legislative Assembly, the initial period of application extending to 4 years after the end of the transition period.28
The IE/NI Protocol makes certain provisions of EU law applicable also to and in the United Kingdom in respect of Northern Ireland. In the IE/NI Protocol, the EU and the United Kingdom have furthermore agreed that insofar as EU rules apply to and in the

United Kingdom in respect of Northern Ireland, Northern Ireland is treated as if it were a Member State.29

The IE/NI Protocol provides that Union type-approval legislation applies to and in the United Kingdom in respect of Northern Ireland.30
This means that references to the EU in Parts A and B of this Notice have to be understood as including Northern Ireland, whereas references to the United Kingdom have to be understood as referring only to Great Britain.

More specifically, this means inter alia the following:

• Motor vehicles placed on the market in Northern Ireland have to comply with EU type-approval legislation;

• Motor vehicles manufactured in Northern Ireland and shipped to the EU are not imported products;

• Motor vehicles shipped from Great Britain to Northern Ireland are imported products;

• The importer and the manufacturer’s representative may be established in Northern Ireland;

• Where provisions of Union law require a unique code indicating a Member State, it shall be indicated as “UK(NI)”;31
• Type-approvals as well as revisions or extensions to such approvals granted by an EU approval authority are valid in Northern Ireland, i.e. motor vehicles can be placed on the market, registered and entered into service in Northern Ireland based on an EU type-approval.

However, the IE/NI Protocol excludes the possibility for the United Kingdom in respect of Northern Ireland to

• participate in the decision-making and decision-shaping of the Union;32
• initiate objections, safeguard or arbitration procedures to the extent that they concern regulations, standards, assessments, registrations, certificates, approvals and authorisations issued or carried out by EU Member States; 33

29 Article 7(1) of the Withdrawal Agreement in conjunction with Article 13(1) of the IE/NI Protocol.

30 Article 5(4) of the IE/NI Protocol and section 9 and 14 of annex 2 to that Protocol.

31 Article 7(2) of the IE/NI Protocol. Technical constraints, usually linked to databases, may require the country code to be limited to two digits. In this case, a non-attributed combination of digits should be used.

32 Where an information exchange or mutual consultation is necessary, this will take place in the joint consultative working group established by Article 15 of the IE/NI Protocol.

33 Fifth subparagraph of Article 7(3) of the IE/NI Protocol.

• invoke the country of origin principle or mutual recognition for products placed legally on the market in Northern Ireland, or for assessments, registrations, certificates, approvals or authorisations issued or other activities performed by authorities or bodies established in the United Kingdom.34
More specifically, this last point means inter alia the following:

• Type-approvals as well as revisions or extensions to such approvals granted by the United Kingdom approval authority on the basis of the provisions of Union type-approval legislation made applicable by the IE/NI Protocol are valid only in Northern Ireland. By contrast, these type-approvals, revisions or extensions are not valid in the EU.35
• Where motor vehicles are type-approved by the United Kingdom approval authority, the indication “UK(NI)” must be affixed next to any conformity marking, logo or similar required by the applicable provisions of Union type- approval legislation.36 This distinct marking allows the identification of motor vehicles which can be legally placed on the market, registered and entered into service in Northern Ireland, but not in the EU.

34 First subparagraph of Article 7(3) of the IE/NI Protocol.

35 Fourth subparagraph of Article 7(3) of the IE/NI Protocol.

36 Fourth subparagraph of Article 7(3) of the IE/NI Protocol.