Directive 2007/46/EC of the European Parliament and of the Council (repealed)Show full title

CHAPTER XII SAFEGUARD CLAUSES

Article 29 Vehicles, systems, components or separate technical units in compliance with this Directive

1. If a Member State finds that new vehicles, systems, components or separate technical units, albeit in compliance with the applicable requirements or properly marked, present a serious risk to road safety, or seriously harm the environment or public health, that Member State may, for a maximum period of six months, refuse to register such vehicles or to permit the sale or entry into service in its territory of such vehicles, components or separate technical units.

In such cases, the Member State concerned shall immediately notify the manufacturer, the other Member States and the Commission accordingly, stating the reasons on which its decision is based and, in particular, whether it is the result of:

• shortcomings in the relevant regulatory acts, or

• incorrect application of the relevant requirements.

2. The Commission shall consult the parties concerned as soon as possible and, in particular, the approval authority that granted the type-approval in order to prepare the decision.

3. Where the measures referred to in paragraph 1 are attributed to shortcomings in the relevant regulatory acts, the appropriate measures shall be taken as follows:

• where separate directives or regulations listed in Part I of Annex IV are concerned, the Commission shall amend them in accordance with the regulatory procedure with scrutiny referred to in Article 40(2),

• where UNECE Regulations are concerned, the Commission shall propose the necessary draft amendments to the relevant UNECE Regulations in accordance with the procedure applicable under the Revised 1958 Agreement.

4. Where the measures referred to in paragraph 1 are attributed to incorrect application of the relevant requirements, the Commission shall take the appropriate measures to ensure compliance with such requirements.

Article 30 Vehicles, systems, components or separate technical units not in conformity with the approved type

1. If a Member State which has granted an EC type-approval finds that new vehicles, systems, components or separate technical units accompanied by a certificate of conformity or bearing an approval mark do not conform to the type it has approved, it shall take the necessary measures, including, where necessary, the withdrawal of type-approval, to ensure that production vehicles, systems, components or separate technical units, as the case may be, are brought into conformity with the approved type. The approval authority of that Member State shall advise the approval authorities of the other Member States of the measures taken.

2. For the purposes of paragraph 1, deviations from the particulars in the EC type-approval certificate or the information package shall be deemed to constitute failure to conform to the approved type.

A vehicle shall not be deemed to deviate from the approved type where tolerances are permitted by the relevant regulatory acts and those tolerances are respected.

3. If a Member State demonstrates that new vehicles, components or separate technical units accompanied by a certificate of conformity or bearing an approval mark do not conform to the approved type, it may ask the Member State which granted the EC type-approval to verify that vehicles, systems, components or separate technical units in production continue to conform to the approved type. On receipt of such a request, the Member State concerned shall take the requisite action as soon as possible and in any case within six months of the date of the request.

4. The approval authority shall request the Member State which granted the system, component, separate technical unit or incomplete vehicle type-approval to take the necessary action to ensure that vehicles in production are brought back into conformity with the approved type in the following cases:

(a) in relation to an EC vehicle type-approval, where the non-conformity of a vehicle is attributable exclusively to the non-conformity of a system, component or separate technical unit;

(b) in relation to a multi-stage type-approval, where the non-conformity of a completed vehicle is attributable exclusively to the non-conformity of a system, component or separate technical unit being part of the incomplete vehicle, or of the incomplete vehicle itself.

On receipt of such a request, the Member State concerned shall take the requisite action, if necessary in conjunction with the Member State making the request, as soon as possible and in any case within six months of the date of the request. Where a failure to conform is established, the approval authority of the Member State which granted the system, component or separate technical unit EC type-approval or the approval of the incomplete vehicle shall take the measures set out in paragraph 1.

5. The approval authorities shall inform each other within 20 working days of any withdrawal of EC type-approval and of the reasons therefor.

6. If the Member State that granted EC type-approval disputes the failure to conform notified to it, the Member States concerned shall endeavour to settle the dispute. The Commission shall be kept informed and, where necessary, shall hold appropriate consultations with a view to reaching a settlement.

Article 31 Sale and entry into service of parts or equipment which are capable of posing a significant risk to the correct functioning of essential systems

1. Member States shall permit the sale, the offer for sale or entry into service of parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or for its environmental performance, only if those parts or equipment have been authorised by an approval authority in accordance with paragraphs 5 to 10.

2. Parts or equipment subject to authorisation in accordance with paragraph 1 shall be inserted in the list to be established in Annex XIII. Such a decision shall be preceded by an evaluation resulting in a report and strive for a fair balance between the following elements:

(a) the existence of a serious risk to the safety or environmental performance of vehicles fitted with the parts or equipment under consideration; and

(b) the effect on consumers and manufacturers in the after-market of the imposition under this Article of a possible authorisation requirement on the parts or equipment under consideration.

3. Paragraph 1 shall not apply to original parts or equipment which are covered by a system type-approval with respect to a vehicle and to parts or equipment which are type-approved in accordance with the provisions of one of the regulatory acts listed in Annex IV, except where those approvals relate to aspects other than those covered in paragraph 1. Paragraph 1 shall not apply to parts or equipment exclusively produced for racing vehicles not intended for use on public roads. If parts or equipment included in Annex XIII have a dual use for racing and on the road, these parts or equipment may not be sold or offered for sale to the general public for use in on-road vehicles unless they comply with the requirements of this Article.

Where appropriate, the Commission shall adopt provisions for identifying the parts or equipment referred to in this paragraph.

4. The Commission shall, after consulting stakeholders, establish the procedure and the requirements of the authorisation process referred to in paragraph 1, and adopt the provisions for the subsequent updating of the list established in Annex XIII. Those requirements shall include prescriptions for safety, environmental protection and, where needed, for testing standards. They may be based on the regulatory acts listed in Annex IV, may be developed according to the relevant state of safety, environmental and testing technology, or, if this is an appropriate way of achieving the required safety or environmental objectives, may consist of a comparison of the part or equipment with the environmental or safety performance of the original vehicle, or of any of its parts, as appropriate.

5. For the purposes of paragraph 1, the manufacturer of parts or equipment shall submit to the approval authority a test report drafted by a designated technical service which certifies that the parts or equipment for which authorisation is sought comply with the requirements referred to in paragraph 4. The manufacturer may introduce only one application per type per part with only one approval authority.

The application shall include details concerning the manufacturer of the parts or equipment, the type, identification and part numbers of the parts or equipment for which authorisation is sought, as well as the vehicle manufacturer’s name, type of vehicle and, if appropriate, years of construction or any other information permitting the identification of the vehicle for which the fitting of such parts or equipment is intended.

When the approval authority is satisfied, taking account of the test report and other evidence, that the parts or equipment in question comply with the requirements referred to in paragraph 4, it shall issue a certificate to the manufacturer without unjustified delay. This certificate shall authorise the parts or equipment to be sold, offered for sale or fitted to vehicles in the Community subject to the second subparagraph of paragraph 9.

6. Each part or piece of equipment authorised in application of this Article shall be appropriately marked.

The Commission shall establish marking and packaging requirements, as well as the model and numbering system of the certificate referred to in paragraph 5.

7. The measures referred to in paragraphs 2 to 6 shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 40(2) as they are designed to amend non-essential elements of this Directive, inter alia by supplementing it.

8. The manufacturer shall inform without delay the approval authority that issued the certificate of any change affecting the conditions under which it was delivered. That approval authority shall decide whether the certificate has to be reviewed or reissued and whether fresh tests are necessary.

The manufacturer shall be responsible for ensuring that the parts and equipment are produced and continue to be produced under the conditions under which the certificate was issued.

9. Before delivering any authorisation, the approval authority shall verify the existence of satisfactory arrangements and procedures for ensuring effective control of the conformity of production.

Where the approval authority finds that the conditions for issuing the authorisation are no longer fulfilled, it shall request the manufacturer to take the necessary measures to ensure that the parts or equipment are brought back into conformity. If necessary, it shall withdraw the authorisation.

10. Any disagreement between Member States in relation to the certificates referred to in paragraph 5 shall be brought to the attention of the Commission. It shall take appropriate measures, including, where necessary, requiring the withdrawal of the authorisation, after having consulted the Member States.

11. This Article shall not be applicable to a part or piece of equipment before it is listed in Annex XIII. For any entry or group of entries in Annex XIII a reasonable transitional period shall be fixed to allow the manufacturer of the part or equipment to apply for and obtain an authorisation. At the same time a date may be fixed, where appropriate, to exclude parts and equipment designed for vehicles type-approved before that date from the application of this Article.

12. As long as a decision as to whether or not a part or piece of equipment is to be included in the list referred to in paragraph 1 has not been taken, Member States may maintain national provisions dealing with parts or equipment which are capable of posing a significant risk to the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance.

Once such a decision in this regard has been taken, the national provisions dealing with the parts or equipment in question shall cease to be valid.

13. As from 29 October 2007, Member States shall not adopt new provisions dealing with parts and equipment which can affect the correct functioning of systems that are essential for the safety of the vehicle or its environmental performance.

Article 32 Recall of vehicles

1. Where a manufacturer who has been granted an EC vehicle type-approval is obliged, in application of the provisions of a regulatory act or of Directive 2001/95/EC, to recall vehicles already sold, registered or put into service because one or more systems, components or separate technical units fitted to the vehicle, whether or not duly approved in accordance with this Directive, presents a serious risk to road safety, public health or environmental protection, he shall immediately inform the approval authority that granted the vehicle approval thereof.

2. The manufacturer shall propose to the approval authority a set of appropriate remedies to neutralise the risk referred to in paragraph 1. The approval authority shall communicate the proposed measures to the authorities of the other Member States without delay.

The competent authorities shall ensure that the measures are effectively implemented in their respective territories.

3. If the measures are considered to be insufficient by the authorities concerned or have not been implemented quickly enough, they shall inform the approval authority that granted the EC vehicle type-approval without delay.

The approval authority shall then inform the manufacturer. If the approval authority which granted the EC type-approval is itself not satisfied with the measures of the manufacturer, it shall take all protective measures required, including the withdrawal of the EC vehicle type-approval where the manufacturer does not propose and implement effective corrective measures. In case of withdrawal of the EC vehicle type-approval, the concerned approval authority shall notify the manufacturer, the approval authorities of the other Member States and the Commission by registered letter or equivalent electronic means within 20 working days.

4. This Article shall also apply to parts that are not subject to any requirement under a regulatory act.

Article 33 Notification of decisions and remedies available

All decisions taken pursuant to the provisions adopted in implementation of this Directive and all decisions refusing or withdrawing EC type-approval, or refusing registration or prohibiting sales, shall state in detail the reasons on which they are based.

Any such decision shall be notified to the party concerned who shall, at the same time, be informed of the remedies available to him under the laws in force in the Member State concerned and of the time limits allowed for the exercise of such remedies.