In a request for a preliminary ruling before the Court of Justice of the European Union, a national judge has referred two questions concerning a light electric vehicle that, in his view, should fall within the scope of Regulation (EU) 168/2013, yet cannot obtain EU type-approval. The Court is asked, inter alia, whether the exclusion laid down in Article 2.2 of that Regulation is compatible with the principle of equality as guaranteed by EU law. The Court’s answer may have significant implications for current proposals, notably those advanced by ZIV, seeking to extend the scope of Regulation (EU) 168/2013 to a broader range of electric cycles.

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There is currently an interesting request for a preliminary ruling before the European Court of Justice. A national judge is asking the Court whether it is correct that a vehicle which, in his view, falls under Regulation 168/2013 but cannot obtain type approval, may not be used on the public road.

His second question is whether Article 2.2(k) of Regulation 168/2013 constitutes an infringement of the provisions of Article 9 of the EU Treaty and Article 20 of the Charter of Fundamental Rights of the European Union, insofar as no type-approval requirements (and according to the judge therefore no vehicle safety requirements) are imposed on manufacturers of these vehicles for use on public roads.

For clarification, these questions concern an electric recumbent tricycle with a motor and a very low seating position. If the R-point of a vehicle is lower than or equal to 540 mm in L1 (2 wheels) and 400 mm in L2 (3 wheels), then that vehicle is excluded from Regulation 168/2013 and the associated type approval on the basis of Article 2.2(k).

Excluded from Type-Approval = Machinery Directive

The national judge appears to assume that this vehicle may not be used on public roads because it does not have type approval. In our view, this is incorrect reasoning because a distinction must be made between legislation that regulates whether and how a vehicle may be placed on the European market on the one hand, and legislation that regulates whether and how a vehicle may be used on public roads on the other. Placing on the market is a European matter; use on the public road is a national competence.

An electric recumbent cycle with an R-point below the minima in Regulation 168/2013 is clearly excluded on the basis of Article 2.2(k), even if the motor assists above 25 km/h and/or assists without pedalling. The maximum continuous rated power of the motor is also irrelevant.

As a result of that exclusion, such an electric recumbent cycle is subject to the Machinery Directive and, among others, also to the EMC Directive and RoHS in order to be placed on the market. To be allowed on the road for instance in Belgium, the recumbent cycle must comply with the Royal Decree of 1 December 1975 regulating the use of public roads. That Royal Decree defines the different types of vehicles. If the auxiliary motor does not comply with the limits set out in Article 2.2(h) of Regulation 168/2013 for so-called EPACs, then in Belgium it falls within the category “motorised tricycle,” defined as “any three-wheeled motor vehicle that does not meet the definition of a moped and whose maximum unladen mass does not exceed 1,000 kg.”

Apart from this, the electric recumbent cycle is not required to comply with any technical requirements other than those arising from the aforementioned European legislation in order to be placed on the market.

Thus, for example, an electric cycle with motor assistance — whether or not you are pedalling — up to 45 km/h falls under the Machinery Directive, EMC and RoHS, whereby the manufacturer may self-certify compliance with that legislation. A speed pedelec, on the other hand, falls under Regulation 168/2013, whereby the manufacturer is required to have compliance checked by an accredited technical service. In many member states, moreover, no such service is available, meaning manufacturers are obliged to take their vehicle types abroad.

EPACs are Machines

The Machinery Directive does not contain specific requirements and tests for the electric recumbent cycle, as this legislation considers it as a machine; it only contains horizontal safety requirements applicable to all machines. The sector has translated these requirements for EPACs into concrete electric cycle requirements and tests through European standards such as EN 15194 and the 17860 series.

In the case of type approval, the manufacturer must work through 1,032 pages of text to determine what his speed pedelec must comply with. This is an extremely complex, expensive and inappropriate procedure. A large part of those 1,032 pages concerns emissions and noise. The type-approval framework is, moreover, in many respects entirely unsuited to vehicles that are not classic mopeds or motorcycles. For example, a speed pedelec manufacturer is legally obliged to test his frame and forks on the basis of a standard for conventional bicycles that does not exist.

Quite rightly, the judge raises the question whether the different legal status of the electric recumbent cycle compared to the speed pedelec may constitute an infringement of the principle of equality. The Court is asked to rule on possible violations of that principle in Article 9 of the EU Treaty and Article 20 of the Charter of Fundamental Rights of the European Union. For a definitive answer to that question, we must await the Court’s ruling.

Violations of Technology Neutrality

What this situation certainly already constitutes is a violation of the principle of technological neutrality deriving from European legislation. There is no reasonable, nor legal, basis to subject two similar vehicles to entirely different legal frameworks.

Moreover, electric cycles with low seating ended up under Article 2.2(k) entirely unintentionally. This article was introduced to keep so-called pocket bikes, that is toy motorcycles, outside the legislation. The legislator did not realise at the time that certain electric recumbent cycles would thereby also cease to be subject to type approval.

The exclusion of electric scooters without a saddle gives rise to similar discrimination. They are excluded from Regulation 168/2013 on the basis of Article 2.2(j): “vehicles not equipped with at least one seating position.” The legislator used this careless wording because, at the time, there were only scooters without saddles. Put a saddle on them and they fall within category L1e-B mopeds. Thus, two vehicles with identical kinetic energy fall under two different legal frameworks.

The third and final example of an infringement of technological neutrality is that of the motorised cycle (L1e-A). Any electric cycle whose motor operates up to 25 km/h whether or not you are pedalling and/or with a maximum continuous rated power of more than 250W falls under type approval. If the cycle only assists up to 25 km/h when pedalling and the maximum continuous rated power is limited to 250W, the cycle falls under the Machinery Directive.

This infringement of technological neutrality exacts a very high toll. Of the so-called EPACs under the Machinery Directive, millions are on the road; of the motorised cycle, not a single one. ZIV claims that this is because the EPAC has bicycle status. Nothing could be further from the truth: the Machinery Directive and type approval only determine the conditions under which a product may be placed on the market. It is entirely irrelevant what that product actually is. It is in the conditions for access to public roads that Member States have determined that 25 km/h – 250W electric cycles enjoy the same conditions as conventional bicycles. In some countries, including Belgium, it has been decided that other vehicles also fall under those “bicycle” conditions, such as the electric scooter, the motorised cycle and largely also the speed pedelec. The assertion that only the EPAC enjoys the same status as a bicycle is clearly incorrect.

199 kg vs 201 kg

If ZIV’s proposals are implemented, the infringements of technological neutrality will worsen significantly. An electric cargo cycle of 199 kg under the Machinery Directive; that same bike at 201 kg under type approval. An EPAC with 750W peak power under the Machinery Directive; 800W under type approval. An electric family cargo cycle with an assistance factor of 4 under the Machinery Directive; with an assistance factor of 5 under type approval. These are examples of electric cycles with, if not identical, then very similar kinetic energy, which by virtue of the arbitrariness of the ZIV proposal will be able to survive under the Machinery Directive and will be destroyed under type approval. This has nothing to do with protecting the bicycle status of the EPAC. This is a deliberate attempt to push specific segments of the electric cycle sector out of the market.

In a recent LinkedIn post, someone from the bicycle industry reported on discussions in a European Cycling Industries (ECI) Working Group on “how to prevent well-regulated ebikes from being pulled into broader motor-vehicle legislation because of non-compliant products flooding the market.” Apparently, no one ever asks who, what, where, why and when there are plans to pull well-regulated ebikes into broader motor-vehicle legislation. The claim is accepted without question and the sector panics in confusion. “The bike industry is in danger,” writes that well-meaning man on LinkedIn. At the beginning of February, ECI sent feedback to the Commission regarding the forthcoming revision of the legislation on market surveillance and compliance. That contains nothing about the alleged danger that non-compliant products flooding the market will push e-bikes into motor-vehicle regulation. ZIV also submitted feedback, and there too nothing is said about this.

Regulatory Hell

Where exactly is the danger that e-bikes will be pushed into motor-vehicle legislation? That question has never been answered because the danger simply does not exist. Moreover, the questions referred by the national judge to the European Court show that the ZIV proposal would, if anything, make the legislation even more disastrous.

A large proportion of the electric cycles that currently fall under the Machinery Directive would fall under type approval. Should the European Commission not first consult the sector concerned to determine whether it considers that an appropriate framework and whether it finds it necessary for electric cycles to be subject to type approval instead of self-certification as a compliance method? The current type-approval system is regulatory hell for LEVs, as clearly demonstrated by the experiences of speed pedelec manufacturers. A speed pedelec in both women’s and men’s versions requires two full type approvals. Each type approval costs tens of thousands of euros.

Type approval determines the conditions under which vehicles may be placed on the market, but not the conditions under which they may be used on public roads. All electric cycles currently admitted to public roads by Member States will, as a result of type approval, undoubtedly be shifted by the majority of Member States into the moped or motorcycle category. That is the part of the plan about which ZIV remains silent in every language: what about the future of the electric cycles that ZIV intends to push into type approval?

The ebike industry is definitely in danger, but not because well-regulated ebikes will be pulled into broader motor-vehicle legislation because of non-compliant products flooding the market — rather because no one is asking the right questions. In this matter in particular, it is truly paramount to inform oneself very, very, very carefully before forming an opinion.

Annick Roetynck,
LEVA-EU Managing Director