End of last year, the European Parliament, Council and Commission reached an agreement on the future Machinery Regulation. Parliament and Council went against the Commission’s proposal to exclude all vehicles from the future legislation. That will have particularly adverse effects on electric cycles, e-scooters and self-balancing vehicles.
Originally, the Commission proposed to exclude all “vehicles which have as their only objective the transport of goods or persons by road, air, water of rail (…).” The justification was that Machinery legislation was “not meant to regulate risks other than those stemming from the machinery function (such as sawing, excavating, etc.) and not the risks exclusively relating to its transport function of persons or goods.” If they had been excluded, they would have come under the General Product Safety Directive (GPSD), just like conventional cycles. More importantly, this would only have been a temporary solution in anticipation of a specific Regulation for Light Electric Vehicles.
Unnecessary Machinery Directive
The intermediate solution of the GPSD would have been so much better for LEVs because this Directive only has very general requirements. In addition, there are already several European standards with specific technical safety requirements in place, i.e. the EN 15194 for EPACs, the EN 17128 for PLEVs (e-scooters & self-balancing vehicles) and the EN 17404 for EPAC mountain bikes. The fact that these vehicles present no structural safety risks shows that the standards offer adequate technical requirements and that the Machinery Directive is unnecessary to ensure that safety.
On the contrary, in recent years, in standardisation it has become increasingly clear how much the current Machinery Directive is an obstacle to Light Electric Vehicles (LEVs). The Directive contains hazards that are totally irrelevant to LEVs, for instance noise, vibrations or protection against risks from moving parts.
Originally, there were in-house CEN consultants, who worked together with the technical committees to ensure that the draft standards met the requirements of the Machinery Directive in the best possible way to maximize the chances of harmonization. The harmonization of standards under the Machinery Directive offers manufacturers presumption of conformity in case of a dispute, or worse, a court-case. This presumption of conformity is an important guarantee of legal certainty.
With these in-house consultants, there was room to negotiate which requirements were relevant or not. One very important agreement for the EN 15194 (EPACs) for instance was that the requirements for moving parts were not relevant for cycle wheels. Without that agreement, the standard would have required all wheels to be covered.
Since, the Commission has changed the system. They replaced the in-house consultants by so-called Harmonised Standards (HAS) consultants. The contract was outsourced to a private company, i.e. Ernst & Young. The task of these consultants is to support the Commission to verify whether the requirements for harmonisation are met. However, HAS consultants are no longer involved in the actual drafting processes and therefore technical committees can no longer make use of HAS consultants services to fill any potential gaps in the technical or legal expertise, nor to negotiate.
What’s worse for LEVs, HAS consultants make all Machinery Directive requirements applicable to LEVs, whether relevant are not. As a result, in the new system none of the LEV- standards has achieved harmonisation. To this end, nonsensical tests should be introduced such as on the noise level the vehicles produce or on vibrations, which for LEVs obviously come from the road surface not from the vehicle itself. As for the future standards for electric cargocycles, it is already clear that no harmonisation will be requested because it is simply not feasible.
The new Machinery Regulation will only exacerbate these issues. Indeed, the new legal text will now explicitly state that the Regulation applies only to risks arising from the machinery function, not the transport function. However, who will determine what is a machinery function and what is a transport function? In our view, LEVs don’t have machinery functions, only transport functions. That is exactly why the Commission thought it necessary to exclude them. Unfortunately, the European Parliament and Council literally twisted the Commission’s words, the result being an unworkable mess.
One party that argued hard to keep LEVs, more specifically electric bikes, in the new legal text was CONEBI, the trade association for the (electric) bike industry. We quote from their position paper: “The EU Machinery Directive is of high importance to the EU Bicycle Industry as it legislates the essential health and safety requirements relating to the design and construction of electrically power assisted cycles (EPACs). The fact that EPACs are within the scope of the Machinery Directive was officially acknowledged in the first Edition of the Guide to Application of the Machinery Directive 2006/42/EC of December 2009.”
CONEBI clearly does not question the adequacy of the essential health and safety machinery requirements for EPACs. Also, the CONEBI memory is somewhat lacking here. in 2006, yours truly and a representative of CONEBI (called COLIBI at that time) had a meeting with the Commission to ask if there was still any chance of avoiding the Machinery Directive for electric bicycles excluded from type-approval. In other words, originally CONEBI was not in favour of having electric bikes in the Machinery Directive. Their current efforts to keep EPACs in the new Machinery Regulation clearly shows that the association has no understanding of the impact on standardisation for EPACs AND for other light, electric vehicles, nor of the consequences for the businesses concerned. Hopefully their understanding will grow as the disastrous impact of the new legislation on LEVs becomes a reality. In the meantime, LEVA-EU will continue its efforts for a specific LEV-Regulation designed in consultation with the LEV-business for the LEV-business.