KBA prepares to conduct market surveillance

Daniel Wuhrmann

EU Regulation 2018/858 applies directly in all EU member states as of 1 September 2020 (as we reported). This legislation harmonizes the technical requirements and the rules governing type approval and placement on the market for all new vehicles, systems, components and separate technical units.

Requirements for manufacturers

Manufacturers are generally responsible for the approval procedure and for adhering to the requirements (technical requirements) specified in Annex II to the Regulation, in which the applicable regulatory acts are listed.  Moreover, it is not only actual deviations from these requirements which are subject to oversight and penalties: manufacturers are also considered to be non-compliant with the Regulation if the approval or market surveillance authorities and/or the Commission are unable to verify adherence to the technical requirements based on the information provided by the manufacturer (Article 5(2)(c)). As a result, manufacturers have a far-reaching duty of care to ensure that adherence to the technical requirements is documented in a complete and comprehensible manner. 

Specification of market surveillance measures

Each member state is required to test one in every 40,000 vehicles registered each year (Article 8(2)), one in every five of which must be tested under real-world conditions (Article 8(3)). Germany's Federal Motor Transport Authority (KBA) is responsible for both approval and market surveillance. This is permissible in accordance with the Regulation, provided a strict separation of responsibilities, functions and activities is maintained within the organization, and if the tasks are managed by independent structures (Article 6(1)).
KBA's infrastructure has been adapted so as to satisfy the extensive requirements, particularly with regard to defeat devices (also see Recital No. 36). As of the start of 2021, KBA's market surveillance division, which has been the responsible body since early 2017, will have access to a stationary emissions laboratory (only in German) in addition to its existing mobile emissions testing equipment. KBA also has a test track (only in German), in which e.g. a vehicle's emissions as measured on a chassis dynamometer can be checked by conducting the driving cycles prescribed by law.

Measures and penalties

The object of the Regulation is to strengthen the "quality of testing, market surveillance and governance of the type-approval system." With regard to potential market surveillance, an extensive system of measures has now been established, for which consistent rules apply across the EU. With regard to product recalls, KBA and national manufacturers have developed a Code for the execution of recall campaigns. Notwithstanding this Code, Article 51 and subsequent Articles of the Regulation provide for EU-wide collaboration on the part of the authorities in each member state, to be achieved through mutual notification requirements, and to be implemented in a consistent manner based on implementing acts.
In addition to the measures provided for in the Regulation (e.g. refusal to recognize type approval (Article 52)), member states may also impose additional penalties for violation of the Regulation (Article 84). In addition, the Commission may impose fines upon those who fail to meet the Regulation's requirements (Article 85). The fines imposed by the Commission may be severe (up to EUR 30,000 for each non-conforming vehicle, system or component, or each separate technical unit), but may not be combined with penalties imposed by the member states for the same violation.

[January 2021]