16. After regulation 33 (forgery, false statements, etc), insert—
“Defeat systems
33A.—(1) A person who is a manufacturer is guilty of an offence if a motor vehicle manufactured by that person—
(a)is placed on the market or registered in the United Kingdom; and
(b)that motor vehicle is fitted with a defeat system which is not permitted.
(2) A separate offence under paragraph (1) is committed in respect of each such motor vehicle placed on the market or registered.
(3) A defeat system is not permitted unless—
(a)in the case of a motor vehicle to which Regulation (EC) 595/2009 applies, the fitting and operation of the defeat system is explained in the extended documentation package submitted by the manufacturer to the approval authority (as defined in Article 3(29) of the Framework Directive) when applying for emissions type approval for that vehicle; or
(b)in the case of a motor vehicle to which Regulation (EC) 715/2007 applies—
(i)its use falls within one of the exceptions listed in Article 5(2)(a) to (c) of that Regulation; and
(ii)in respect of a motor vehicle submitted for emissions type approval after 16th May 2016, the fitting and operation of the defeat system is explained in the documentation package submitted by the manufacturer to the approval authority (as defined in Article 3(29) of the Framework Directive) when applying for emissions type approval for that vehicle.
(4) Where, following examination of motor vehicles associated with a single EC vehicle type approval, the approval authority is satisfied that two or more of those motor vehicles—
(a)are vehicles for which an EC certificate of conformity has been issued in respect of that approval; and
(b)are fitted with a defeat system which is not permitted,
each motor vehicle associated with that single EC vehicle type approval is to be taken to be similarly fitted with a defeat system which is not permitted unless proved otherwise by the manufacturer.
(5) In paragraph (4), a motor vehicle is associated with an EC vehicle type approval if an EC certificate of conformity relating to that type approval has been issued in respect of that vehicle.
(6) Schedule 7 (penalties, enforcement and other matters) applies in relation to an offence under this regulation.
(7) In this regulation—
“Commission Regulation (EC) No 692/2008” means Commission Regulation (EC) No 692/2008 implementing and amending Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information(1);
“Commission Regulation (EC) No 582/2011” means Commission Regulation (EC) No 582/2011 implementing and amending Regulation (EC) No 595/2009 of the European Parliament and of the Council with respect to emissions from heavy duty vehicles (Euro VI) and amending Annexes I and III to Directive 2007/46/EC of the European Parliament and of the Council(2);
“Commission Regulation (EC) No 2017/1151” means Commission Regulation (EC) No 2017/1151 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (3);
“defeat system” means—
in the case of a motor vehicle to which Regulation (EC) 595/2009 applies—
where the engine system or engine family meets the conditions specified in Article 6(1a) of Commission Regulation (EC) No 582/2011, a “defeat strategy” as defined in paragraph 2 of UNECE Regulation No 49;
in all other cases, a “defeat strategy” as defined in Article 3(8) of Regulation (EC) 595/2009,
at the time of applying for emissions type approval for that vehicle;
in the case of a motor vehicle to which Regulation (EC) 715/2007 applies—
where, pursuant to Article 6(1) of Commission Regulation (EC) No 692/2008, the motor vehicle meets the requirements of Regulation (EC) 715/2007 by virtue of compliance with UNECE Regulation No 83, a “defeat device” as defined in paragraph 2 of that UNECE Regulation;
in all other cases, a “defeat device” as defined in Article 3(10) of Regulation (EC) 715/2007,
at the time of applying for emissions type approval for that vehicle;
“emissions type approval” means EC type approval in accordance with Regulation (EC) 715/2007 or Regulation (EC) 595/2009 (as appropriate) in respect of tailpipe emissions and evaporative emissions for a motor vehicle;
“extended documentation package” means—
in the case of a motor vehicle to which Regulation (EC) 715/2007 applies, the extended documentation package mentioned in—
Article 5(11) of Commission Regulation (EC) No 692/2008(4); or
Article 5(11) of Commission Regulation (EC) No 2017/1151;
in the case of a motor vehicle to which Regulation (EC) 595/2009 applies, the extended documentation package specified in Article 5(3) of, and Section 8 of Annex I to, Commission Regulation (EC) No 582/2011;
“placed on the market” means supplying or making available, whether in return for payment or free of charge, to a third party, and includes exposure for sale to a third party;
“registered” means registered pursuant to section 21 of the 1994 Act;
“Regulation (EC) 715/2007” means Regulation (EC) No 715/2007 of the European Parliament and of the Council on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information(5);
“Regulation (EC) 595/2009” means Regulation (EC) No 595/2009 of the European Parliament and of the Council on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information(6).
Offences by bodies corporate and partnerships
33B.—(1) If an offence under regulation 33A committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, an officer of the body corporate, or a person purporting to act as an officer of the body corporate, that officer or person (as well as the body corporate) is guilty of the offence and is liable to be proceeded against and punished accordingly.
(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and omissions of a member in connection with the member’s functions of management as it applies to an officer of the body corporate.
(3) If an offence under regulation 33A is—
(a)committed by a Scottish partnership; and
(b)proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, a partner of the partnership,
the partner (as well as the partnership) is guilty of the offence and is liable to be proceeded against and punished accordingly.
(4) In this regulation “officer” in relation to a body corporate means a director, secretary or other similar officer of the body corporate.”.
OJ No. L 199, 28.7.2008, p. 1.
OJ No. L 167, 25.6.2011, p. 1.
OJ No. L 175, 7.7.2017, p. 1.
Paragraph 11 was inserted by Commission Regulation (EU) 2016/646 amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) (OJ No. L 109, 26.4.2016, p. 1).
OJ No. L 171, 29.6.2007, p. 1.
OJ No. L 188, 18.7.2009, p. 1.