CHAPTER X

SAFEGUARD CLAUSES

Engines not in conformity with the approved type
Article 39
1
Where engines bearing a statutory marking and, where applicable, accompanied by a statement of conformity are not in conformity with the approved engine type or engine family, the approval authority which granted the EU type-approval shall take the necessary measures to ensure that the engines in production are brought into conformity with the approved engine type or engine family. Such measures may include the withdrawal of the EU type-approval if the remedial action taken by the manufacturer is inadequate.
The relevant approval authority shall inform the approval authorities of the other Member States of the measures taken.
2
For the purposes of paragraph 1, deviations from the particulars set out in the EU type-approval certificate or in the information package, where those deviations have not been authorised in accordance with Chapter VI, shall be deemed to constitute a failure to conform to the approved engine type or engine family.
3
Where an approval authority finds that engines accompanied by a statement of conformity, if applicable, or bearing a type-approval mark issued in another Member State are not in conformity with the approved engine type or engine family, it may request that the approval authority which granted the EU type-approval verify that the engines in production continue to conform to the approved engine type or engine family. On receipt of such a request, the approval authority which granted the EU type-approval shall take the action referred to in paragraph 1 as soon as possible, and at the latest within three months of the date of the request.
4
The approval authorities shall inform each other within one month of any EU type-approval having been withdrawn and of the reasons for that withdrawal, in accordance with Article 22(5).
5
Where the approval authority that granted the EU type-approval disputes the non-conformity of which it is notified, the Member States concerned shall endeavour to settle the dispute.
The approval authority shall keep the Commission informed thereof and, where necessary, the Commission shall hold appropriate consultations with a view to reaching a settlement.

Recall of engines
Article 40
1
Where a manufacturer that has been granted an EU type-approval is obliged, pursuant to Article 20(1) of Regulation (EC) No 765/2008, to recall engines placed on the market, whether or not the engines are installed in non-road mobile machinery, on the basis that the engines represent a serious risk with regard to the protection of the environment or public health, that manufacturer shall:
a
immediately inform the approval authority that granted the EU type-approval; and
b
propose a set of appropriate remedies to address the serious risk to that approval authority.
2
The approval authority shall communicate the proposed remedies to the approval authorities of the other Member States and to the Commission without delay.
The approval authorities shall ensure that the remedies are effectively implemented in their respective Member States.
3
Where an approval authority considers that the remedies are insufficient or have not been implemented quickly enough, it shall, without delay, inform the approval authority that granted the EU type-approval thereof.
Where the manufacturer does not subsequently propose and implement effective corrective measures, the approval authority which granted the EU type-approval shall take all protective measures required, including the withdrawal of the EU type-approval.
In the case of withdrawal of the EU type-approval, the approval authority shall, within one month of that withdrawal, notify the manufacturer, the approval authorities of the other Member States and the Commission thereof by registered letter or equivalent electronic means.

Notification of decisions and remedies available
Article 41
1
Decisions of the following type or for the following purpose shall state the reasons on which they are based:
a
taken pursuant to this Regulation;
b
refusing or withdrawing an EU type-approval;
c
requiring the recall of an engine from the market;
d
prohibiting, restricting or impeding the placing on the market of an engine; or
e
prohibiting, restricting or impeding the placing on the market of non-road mobile machinery in which an engine falling within the scope of this Regulation is installed.
2
The approval authorities shall notify the party concerned of:
a
any decision referred to in paragraph 1;
b
the remedies available to it under the laws in force in the Member State concerned and of the time limits applicable to those remedies.