WRITTEN QUESTION P-2230/03

by Ole Sørensen (ELDR) to the Commission

(30 June 2003)

Subject: Approval of multi-purpose utility vehicle in Denmark

HWH, a company in the town of Hadsund, has had its application for approval of a new LADOG multi-purpose utility vehicle rejected by the Danish Road Safety and Transport Agency. The vehicle is made in Germany and is a multi-purpose utility vehicle specially designed for the local government sector.

The Commissioner of Police granted road contractors acting on behalf of Århus County a three-month exemption running from 11 November 2002 to use a similar vehicle.

The Road Safety and Transport Agency's rejection of the application was the result of the following complications:

- Vehicles weighing more than 3 500 kg must be fitted with ABS brakes. The weight of the vehicle in question itself is 2 400 kg with a total maximum weight of 5 000 kg.

- Since the vehicle is a new design with hydrostatic drive i.e. it has no gear box it is not technically possible to equip the vehicle with ABS brakes.

- The Road Safety and Transport Agency has classified the LADOG vehicle as category N2 i.e. as a lorry. However, it is not immediately obvious that the vehicle should fall into that category since, firstly, the vehicle itself weighs only 2 400 kg and the weight of the equipment it carries may vary from 0-2 600 kg. Secondly, there is no reference in the implementing order for the Road Traffic Act to a requirement for brakes in conjunction with a hydrostatic drive system. In other words, the LADOG vehicle is difficult to classify within the usual categories.

The vehicle is, however, already approved and in use in the following countries: Germany, France, Switzerland, Austria, Belgium, Finland, Italy and Slovenia.

Will the Commission therefore say:

1. whether the Danish Road Safety and Transport Agency's strict interpretation of the rules concerning ABS brakes is consistent with EU competition law, and

2. whether the Danish Road Safety and Transport Agency's strict interpretation of the rules concerning ABS brakes is consistent with the EU principle of mutual recognition?

Answer given by Mr Liikanen on behalf of the Commission

(30 July 2003)

Approvals can be granted at either a vehicle or a system level in accordance with national or European provisions. Where a vehicle or system is type-approved in conformity with Union Directives harmonising a particular area, Member States are obliged not to restrict the placing on the market of the vehicle or system concerned. In case of non-harmonised Community provisions, the application of national rules should not distort the functioning of the internal market and shall be assessed in accordance with the EC Treaty provisions on free movement of goods.

With regard to vehicle approvals, only M1 category vehicles (i.e. passenger cars), at the present time, are obliged to be European whole vehicle type-approved. The approval of all N category vehicles, therefore, is subject to national type-approval and outside a harmonised area. Member States refusing the entry into service into their territory of vehicles authorised in other Member States shall justify it on necessary and proportionate grounds, according to the internal market rules. However, if a vehicle is fitted with a system type-approved in conformity with a Directive, then no Member State may restrict the placing on the market of the vehicle on grounds relating to that system.

Annex I, point 2.2.1.22 of Council Directive 71/320/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and of their trailers(1), as amended(2), relating to braking systems, requires that N2 category vehicles be fitted with anti-lock braking systems (ABS), whilst the fitment of ABS of N1 category vehicles is optional. Council Directive 70/156/EEC of 6 February 1970 relating to the type-approval of vehicles and their trailers(3) defines a vehicle of N2 category as a vehicle used for the carriage of goods and having a maximum mass exceeding 3,5 tonnes and not exceeding 12 tonnes. Therefore, if a single braking system is to be type-approved in conformity with Directive 71/320/EEC as suitable for all versions of the LADOG multi-purpose utility vehicle, it must incorporate ABS, as certain versions of the vehicle would be classified as N2, according to the information provided.

Directive 71/320/EEC does not differentiate between different types of drive, although, it can perhaps be assumed that the provisions have been drafted without specific consideration of hydrostatic drives, as these are not normally used on road vehicles. If it is technically impossible to type-approve a braking system for a vehicle with a hydrostatic drive because the test in Directive 71/320/EEC are not appropriate, then the manufacturer can ask the approval authority to seek a derogation from the provisions of Directive 71/320/EC in accordance with Article 8(2)(c) of Council Directive 70/156/EEC.

To conclude, N category vehicles are not subject to European whole vehicle type approval, therefore the Danish authorities are entitled to operate their own national type-approval scheme for such vehicles. Any such scheme must not mandate provisions that are more onerous than those contained in the relevant Community Directives, and approvals granted in conformity with the Community Directives must be accepted. From the information provided, the Danish Road Safety and Transport Agency classification of the LADOG vehicle as an N2 category vehicle, and hence requiring ABS to be fitted, is consistent with the relevant Community Directives. The Danish Authorities are not obliged to recognise national approvals granted in other Member States, as the provisions upon which those approvals are granted may not be the same as those required in Denmark. Danish authorities must however justify any refusal on necessary and proportionate grounds, according to the internal market rules.

(1) OJ L 202, 6.9.1971.

(2) OJ L 267, 4.10.2002.

(3) OJ L 42, 23.2.1970.