The Motorcycles (Type-Approval) Regulations 2018

Made: 21st February 2018

Laid before Parliament: 28th February 2018

Coming into force: 20th May 2018

The Secretary of State for Transport makes the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 (“the 1972 Act”) .

The Secretary of State is designated for the purposes of section 2(2) of the 1972 Act in relation to the regulation of the type, description, construction or equipment of vehicles, and of components of vehicles, and in particular any vehicle type-approval scheme .

These Regulations make provision for a purpose mentioned in that section and it appears to the Secretary of State that it is expedient for references in these Regulations (and in the consequential amendments made by these Regulations) to Regulation (EU) No 168/2013 of the European Parliament and of the Council on the approval and market surveillance of two- or three-wheel vehicles and quadricycles to be construed as references to a version of that Regulation as it may be amended from time to time.

Citation, commencement and effect

1

These Regulations—

• (a) may be cited as the Motorcycles (Type-Approval) Regulations 2018;

• (b) come into force on 20th May 2018; and

• (c) are of no effect in relation to any matter to which paragraphs 3 to 5 of article 77 of the Motorcycles Regulation applies.

Interpretation

2

• (1) In these Regulations—

• “enforcement authority” means the Secretary of State;

• “the Motorcycles Regulation” means Regulation (EU) No 168/2013 of the European Parliament and of the Council on the approval and market surveillance of two- or three-wheel vehicles and quadricycles as it may be amended from time to time;

• “relevant products” means—vehicles;systems;components;separate technical units;parts; orequipment.

• (2) Unless otherwise provided, any word or expression used in these Regulations which is defined in article 3 of the Motorcycles Regulation has the meaning given in that article.

Appointment of approval authority

3

The Secretary of State is the approval authority for the purposes of these Regulations and the Motorcycles Regulation.

Market surveillance authority

4

The Secretary of State is the market surveillance authority for the purposes of—

• (a) these Regulations and the Motorcycles Regulation; and

• (b) where applied by the Motorcycles Regulation or otherwise applicable to relevant products, Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 .

Requests for information: failure to comply

5

Where a manufacturer who makes an application for type-approval fails to comply with a reasoned request for additional information made under paragraph 5 of article 28 of the Motorcycles Regulation, the approval authority may treat the application as having been withdrawn by the manufacturer.

Refusal of EU type-approval application

6

• (1) The approval authority must refuse an EU type-approval application if the requirements of—

• (a) articles 29 and 31 to 33; or

• (b) article 40,

of the Motorcycles Regulation have not been complied with.

• (2) The requirements of article 32 of the Motorcycles Regulation are not complied with if the tests required by that article demonstrate that there is non-compliance with the technical prescriptions mentioned in paragraph 1 of that article.

• (3) The requirements of article 33 of the Motorcycles Regulation are not complied with if the approval authority is not satisfied that the applicant has made or will make adequate arrangements to ensure that—

• (a) production will conform to the approved type; or

• (b) the data in the certificates of conformity are correct.

Conformity of production: record keeping

7

The holder of an EU type-approval or whole-vehicle type-approval mentioned in article 33 of the Motorcycles Regulation must compile and retain for inspection by the approval authority for a period of five years commencing with the date of compilation, such records of tests and checks undertaken that are sufficient to demonstrate—

• (a) conformity of production to the approved type;

• (b) compliance of certificates of conformity to article 38 of the Motorcycles Regulation; and

• (c) that the data in certificates of conformity issued by the holder are correct.

Making available on the market or entry into service: derogations

8

The derogations permitted by paragraphs 3 and 4 of article 45 of the Motorcycles Regulation apply.

Review of decisions

9

• (1) A decision to which article 53 of the Motorcycles Regulation applies must be given by notice in writing (“a relevant notice”).

• (2) Where the approval authority has given a person a relevant notice, that person may apply to the approval authority for a reconsideration of the decision given in that notice.

• (3) An application under paragraph (2) must—

• (a) be made within the period of 28 days beginning on the date when the relevant notice is received; and

• (b) state the reasons for making the application and be accompanied by such further evidence as the person believes supports those reasons.

• (4) The approval authority may—

• (a) request evidence in support of the application;

• (b) after giving reasonable notice to the applicant, carry out a re-examination of one or more vehicles for the purpose of determining the issues raised by the application.

• (5) The approval authority must as soon as reasonably practicable—

• (a) give written notification to the applicant stating whether the decision is confirmed, amended or reversed; and

• (b) if the decision is reversed or amended, take the appropriate action in respect of the revised decision.

• (6) An applicant aggrieved by the approval authority's notification under paragraph (5) may by notice request the approval authority to appoint an independent assessor to review the decision to which the relevant notice relates.

• (7) A request under paragraph (6) must—

• (a) be made not later than 28 days after receipt of the approval authority's notification under paragraph (5); and

• (b) state the reasons for the request.

• (8) As soon as reasonably practicable after the date of receipt of the request under paragraph (6), the approval authority must—

• (a) appoint a person to act as assessor or, at the authority's discretion, not more than three persons to act as an assessment panel; and

• (b) notify the applicant of the appointment.

• (9) The independent assessor or assessment panel may—

• (a) request further evidence in support of the request for review;

• (b) after giving reasonable notice to the applicant, carry out a re-examination of one or more vehicles for the purpose of determining the issues raised by the request for review.

Withdrawal of approvals: mistake or error

10

• (1) Subject to the provisions of this regulation, the approval authority may decide to withdraw any approval given by it by reason of mistake or error on the part of that authority.

• (2) A decision to withdraw an approval must be given by notice in writing (“a relevant notice”) and specify—

• (a) the nature of the mistake or error; and

• (b) the date from which the approval is to be withdrawn, which must be not less than 28 days nor more than six months after the date on which the relevant notice is given.

• (3) Regulation 9(2) to (9) applies to the review of a decision under this regulation.

• (4) Any review of a decision under this regulation may, subject to the requirement in paragraph (2)(b), vary the date from which the approval is to be withdrawn.

Withdrawal and suspension of approvals: effect

11

• (1) If the holder of an approval which has been withdrawn or suspended pursuant to the Motorcycles Regulation or these Regulations purports by virtue of that approval to—

• (a) issue a certificate of conformity with respect to a vehicle; or

• (b) affix a statutory plate or mark pursuant to article 39 of the Motorcycles Regulation,

the certificate, plate or mark is invalid.

• (2) The approval authority may, by notice given to the holder, exempt from paragraph (1) certificates of conformity or classes of certificates of conformity specified in the notice.

• (3) The suspension of an approval does not affect the validity of any certificate of conformity issued under it before that suspension.

Service

12

• (1) Paragraphs (2) to (4) of this regulation have effect in relation to any notice or other document required or authorised by these Regulations or the Motorcycles Regulation to be given to or served on any person by the approval authority, market surveillance authority or enforcement authority.

• (2) Any such notice or document may be given to or served on the person in question—

• (a) by delivering it to the person;

• (b) by leaving it at that person's proper address;

• (c) by sending it by post to that person at that address;

• (d) by means of any form of electronic communication agreed with the person to whom it is to be sent.

• (3) Any such notice or document may—

• (a) in the case of a body corporate, be given to or served on an officer of that body;

• (b) in the case of a partnership, be given to or served on any partner;

• (c) in the case of an unincorporated association other than a partnership, be given to or served on any member of the governing body of that association.

• (4) For the purposes of this regulation and section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this regulation, the proper address of any person is that person's last known address (whether of the person's residence or of a place where the person carries on business or is employed) and also—

• (a) in the case of a body corporate or an officer of that body, the address of the registered or principal office of that body in the United Kingdom;

• (b) in the case of an unincorporated association other than a partnership or a member of its governing body, its principal office in the United Kingdom;

• (c) an address within the United Kingdom other than that person's proper address at which that person, or another acting on that person's behalf, will accept service of any notice or document required or authorised by these Regulations or the Motorcycles Regulation to be given to or served on any person by the approval authority.

• (5) Any notice or other document or information required by these Regulations or the Motorcycles Regulation to be given to or served by any person on the approval authority, market surveillance authority or enforcement authority must be—

• (a) in writing; or

• (b) in an electronic format accepted by, and sent by means of any form of electronic communication agreed with, the approval authority, market surveillance authority or enforcement authority (as appropriate).

Provision of testing stations

13

The approval authority may provide and maintain stations where examinations of relevant products may be carried out for the purposes of these Regulations or the Motorcycles Regulation and may provide and maintain apparatus for carrying out such examinations.

Provision of technical information: loss or damage

14

• (1) Where a duty is imposed on a manufacturer by Chapter XIV of the Motorcycles Regulation (provision of technical information), any breach of the duty which causes a person to sustain loss or damage is actionable at the suit of that person.

• (2) But, in any proceedings brought against a manufacturer in pursuance of this regulation, it is a defence for the manufacturer to show that the manufacturer took all reasonable steps and exercised all due diligence to avoid the breach.

Offences, enforcement and civil penalties

15

• (1) Schedule 1 (offences, penalties, enforcement and other matters) has effect.

• (2) Except in paragraph 2 of Schedule 1 or in relation to the expression “Officer of Revenue and Customs”, a reference in Schedule 1 to an officer is a reference to any person authorised by the enforcement authority to assist the authority in enforcing these Regulations and the Motorcycles Regulation.

Consequential amendments and revocations

16

Schedule 2 (consequential amendments and revocations) has effect.

SCHEDULE 1 — Offences, penalties, enforcement and other matters

PART 1 — Offences

Offences and penalties

1

A person who is an economic operator is guilty of an offence if that person—

• (a) contravenes any prohibition in these Regulations or the Motorcycles Regulation; or

• (b) fails to comply with any requirement or obligation in these Regulations or the Motorcycles Regulation.

Offences by bodies corporate and partnerships

2

• (1) If an offence under these Regulations committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, an officer of the body corporate, or a person purporting to act as an officer of the body corporate, that officer or person (as well as the body corporate) is guilty of the offence and is liable to be proceeded against and punished accordingly.

• (2) If the affairs of a body corporate are managed by its members, sub-paragraph (1) applies in relation to the acts and omissions of a member in connection with the member's functions of management as it applies to an officer of the body corporate.

• (3) If an offence under these Regulations is—

• (a) committed by a Scottish partnership; and

• (b) proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, a partner of the partnership,

the partner (as well as the partnership) is guilty of the offence and is liable to be proceeded against and punished accordingly.

• (4) In this paragraph “officer” in relation to a body corporate means a director, secretary or other similar officer of the body corporate.

PART 2 — Penalties

Criminal penalties

3

• (1) A person guilty of an offence under these Regulations is punishable on summary conviction—

• (a) in England and Wales by a fine or (in the case of an individual) by imprisonment for a term not exceeding three months, or to both; or

• (b) in Scotland or Northern Ireland by a fine not exceeding level 5 on the standard scale or (in the case of an individual) by imprisonment for a term not exceeding three months, or to both.

• (2) But an offence is not punishable under this paragraph if—

• (a) the enforcement authority has required a person to pay a penalty in respect of that offence under paragraph 4; and

• (b) that penalty has been paid to the enforcement authority.

Civil penalties

4

• (1) The enforcement authority may require a person who is an economic operator to pay a penalty if the enforcement authority is satisfied, on a balance of probabilities, that the person has committed an offence mentioned in paragraph 1.

• (2) But the enforcement authority may not require a person to pay a penalty if—

• (a) the person shows that there was a reasonable excuse for committing the offence; or

• (b) criminal proceedings have been instituted against the person in respect of the same offence.

• (3) A penalty imposed under this paragraph may not exceed £50,000 per offence.

• (4) The penalty is payable to the enforcement authority on demand.

Notification of penalty decision

5

• (1) If the enforcement authority decides to require a person to pay a penalty under these Regulations, the enforcement authority must give the person a penalty notice.

• (2) A penalty notice must—

• (a) be in writing;

• (b) state the enforcement authority's reasons for deciding to require the person to pay a penalty;

• (c) state the amount of the penalty;

• (d) specify the date on which it is given;

• (e) specify the date, at least 28 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid;

• (f) specify how a penalty must be paid;

• (g) include an explanation of the steps that the person may take if the person objects to the penalty (including specifying the manner and form in which any notice of objection must be given to the enforcement authority); and

• (h) include an explanation of the steps the enforcement authority may take to recover any unpaid penalty.

Objection to penalty decision

6

• (1) The recipient of a penalty notice (the “recipient”) may object to the penalty notice by giving a notice of objection to the enforcement authority.

• (2) A notice of objection must—

• (a) give the reasons for the objection;

• (b) be given to the enforcement authority in the manner and form specified in the penalty notice; and

• (c) be given before the end of the period of 28 days beginning with the date specified in the penalty notice as the date on which it is given.

• (3) Where the enforcement authority receives a notice of objection, the enforcement authority must consider it and—

• (a) cancel the penalty;

• (b) reduce the penalty;

• (c) increase the penalty; or

• (d) determine not to alter the penalty.

• (4) After reaching a decision as to how to proceed under sub-paragraph (3), the enforcement authority must notify the recipient of the decision in writing.