A Dutch Court Ruling and Its Implications for the Interpretation of the Pedalling Function of an EPAC

A Dutch court has issued a ruling of considerable importance for the interpretation of the pedalling function of an EPAC. The case concerned a “fatbike” that had been seized because it could be propelled by lightly rocking the pedals back and forth, without any need for a full rotational movement. “Simply wobbling the pedal past the sensor was sufficient to reach a speed of 30 km/h.“

The court appointed an expert who, as the ruling makes clear, worked with great care and thoroughness. He mapped out the relevant legal provisions and tested the fatbike in question both on a dynamometer and on the road. Through that investigation he arrived at a conclusive answer to the question of whether the vehicle could be classified as a pedal-assisted cycle or as a moped, and whether it was legally permitted on the road in its current state.

The expert’s finding reads as follows: “This constitutes pedal assistance as referred to in Article 1(ea) of the Dutch Road Traffic Act — that is, an auxiliary electric motor with a maximum continuous rated power of 0.25 kW, of which the driving force is progressively reduced and cut off when the vehicle reaches a speed of 25 km/h, or sooner when the rider stops pedalling.” That article is the literal implementation of Article 2(2)(h) of Regulation 168/2013.

The expert further notes that an e-bike is permitted to exceed 25 km/h — for example through the rider’s own muscle power, coasting, or descending a slope — provided that the electric assistance has ceased at that point. The mere observation of a speed above 25 km/h does not in itself lead to the conclusion that the e-bike is non-compliant. There is also no legal requirement that the pedals must complete a full rotation during propulsion. A so-called rotation sensor makes it possible for the motor to provide assistance without the pedals turning fully, and the fatbike in question was equipped with such a sensor. The absence of any such requirement in the legislation means that configurations of this kind can be compliant, provided the other conditions of Article 2(2)(h) are met — as was the case here. On the basis of his investigation, the expert concludes that the fatbike in its current state must be regarded as a pedal-assisted cycle within the meaning of Article 2(2)(h) of Regulation 168/2013, for which no type-approval is required and which meets the Dutch requirements for admission to road traffic.

In line with that conclusion, the court withdrew the forfeiture of the fatbike and returned the vehicle to its owner.

This ruling clearly demonstrates that Article 2(2)(h) of Regulation 168/2013 cannot be read as a provision intended to safeguard the so-called bicycle status of the EPAC. The article was solely and exclusively intended to exclude certain vehicles — which had nothing in common with conventional mopeds — from the scope of the Regulation and its associated type-approval requirements. As those involved in the drafting can confirm, the provision was never intended to define bicycle status. Article 1(1)(h) of Directive 2002/24 was simply copied verbatim, with no further discussion of how EPACs should function in practice.

What the expert has now demonstrated is that Article 2(2)(h) contains nothing from which one could infer how the pedals are required to function. Nor does the legislation prohibit a rotation sensor, and consequently it is possible to propel the bicycle without the pedals completing a full rotation. This is significant because the ruling clearly shows that the legislation must be applied as a technically neutral instrument. At the time, the police had fined the rider, ordered him to bring his fatbike into legal compliance, and even seized the vehicle — all on the assumption that “rocking the pedals” could not qualify as “cycling.” In other words, they assumed that Article 2(2)(h) was intended to draw a distinction between a bicycle excluded from the Regulation and a moped falling under category L1e-B within it. That mistaken assumption runs like a thread through many current debates about the legal position of electric bicycles. Some in those debates carry the banner of “we must protect the bicycle status of the EPAC” — yet bicycle status is not a point of discussion in the current technical legislation, and it is precisely that fact which this ruling so neatly demonstrates.

The principle of technological neutrality that the court applied in this ruling — namely that the law should be read as setting functional parameters rather than prescribing how a vehicle must technically achieve them — ought to have guided the legislator when designing the broader regulatory framework for light electric vehicles. It did not. The L1e-A category is a case in point, and arguably the most consequential illustration of what happens when that principle is ignored not by an enforcement authority, as in the fatbike case, but by the legislator itself.

It should also be noted that the choice is not simply between EPAC or moped: there is also the L1e-A, the powered cycle. On that category the European Commission has expressed itself explicitly: “According to the requirements on vehicle classification set out in Annex I, and as opposed to the exemption set out in Article 2(h), a L1e-A vehicle may be equipped with a throttle in order to accelerate/decelerate without the need to pedal. Therefore, the European Commission confirms that the point of view that a vehicle of L1e-A category could be fitted with an auxiliary propulsion unit that could co-exist independently of any pedal-assistance system so that the vehicle may be used either as a bicycle, a pedal-assisted cycle or as a small electric vehicle is in line with the provisions in the co-decision act.”

Because the type-approval framework is wholly ill-suited to “powered cycles,” because that type-approval would be prohibitively costly, and because the road-going status of this vehicle category remains unclear in a great many Member States, there are virtually no such vehicles on the market. This is, however, a serious legislative failure that runs directly counter to the principle of technological neutrality. Risk-based regulation demands consistency: where the physical hazard is identical, the regulatory response must be proportionate and equivalent. The fact that an L1e-A and an EPAC of the same weight travelling at the same speed represent exactly the same kinetic energy — and therefore exactly the same potential for harm — makes the disparity in their regulatory treatment not merely illogical, but a violation of the basic principle of proportionality that underpins sound legislation.

The European Commission has never asked the LEV sector whether it considered it useful or necessary to place one category under the Machinery Directive with self-certification and the other under Regulation 168/2013 with type-approval. There is no better example to illustrate that the current technical legislation for light electric vehicles was not designed in consultation with the LEV sector.

The full judgement is here.