Richard North, 27/01/2021  

I spent an awful lot of time yesterday revisiting the TCA and its provisions on vehicle type-approval. This was after a piece in the Independent headed "No such thing as tariff-free trade deal despite Boris Johnson's claims".

The piece featured Alessandro Marongiu, international trade policy manager at the Society of Motor Manufacturers and Traders, who said that avoiding a no-deal exit had been a "huge relief for the car industry", which has avoided the immediate threat of tariffs on all exports to the EU.

However, he told the House of Lords EU Goods Sub-Committee that, while the agreement provided the opportunity for tariff-free access, there was no such thing as a tariff-free deal. "Rather, tariffs apply unless you comply, and can demonstrate you comply, with rules-of-origin requirements", he said. "The threat of tariffs is there although agreement allows us to trade tariff-free and quota-free".

With that, I wouldn't particularly disagree but what particularly caught my attention was Marongiu's next comment, where he stated that: "Other risks faced by the industry included duplicated costs from having to comply with both EU and UK rules, as well as friction at the border".

This rather contradicts my thinking on the subject, articulated in some detail in this piece, where I argue that both the UK and the EU will be working to a common regulatory code, determined by UNECE regulations, mandated via the TCA.

Challenged by Pete on Twitter, however, Marongiu answers that the EU whole vehicle type approval (WVTA) goes "beyond UNECE conventions applicable to parts and subsystems". Although UK law currently mirrors EU directives on WVTA, he says, "the EU and the UK will have two separate WVTA frameworks that the annex does not mutually recognise".

One hesitates to take on somebody who works for the Society of Motor Manufacturers and Traders and thus does this sort of thing for a living, with all the resources of the car industry behind him, but that didn't seem right to me.

Pete followed through, citing Article 6.1 of Annex TBT-1 (p.489), which States that: "Each Party shall accept on its market products which are covered by a valid UN type-approval certificate as compliant with its domestic technical regulations, markings and conformity assessment procedures".

This seems clear enough to me, but Marongiu weighed in stating that that this "covers UNECE regulations incorporated into EU and UK laws, not what falls outside UNEC"E. The EC WVTA regulations, he says, "go beyond UNECE. So, Article 6 is great for parts and components covered under UNECE, not for all the rest".

That still didn't seem right to me, so I dropped in with a comment, reminding him that the EU had adopted Regulation 0 verbatim, which meant that the EU recognised the UNECE version of whole vehicle type approval, known as IWVTA.

Not so, said Marongiu. "To my knowledge, Regulation 0 is great for UNECE regulations" but "it is no substitute of the EC WVTA". Many countries adopted R0, he said, "but businesses still need to comply with national requirements for regulations falling outside UNECE or even UNECE rules not covered by R0".

Now the exchange begins to take on the character of trench warfare. I lob the comment that the EC WVTA and IWVTA are different things. As far as the TCA goes, I say, the reference is to the IWVTA (Regulation 0). If the manufacturer presents a vehicle which conforms with the IWVTA, then the UK authorities are bound to accept it.

Marongiu responds by agreeing that "IWVTA must be accepted", as with all other UNECE regulations applied by the EU and the UK. But, he says, "this doesn't eliminate new costs to comply with EC WVTA and the forthcoming UK WVTA. IWVTA, he adds, "doesn't mean you can register a UK car into the EU and vice-versa".

Here, Marongiu seems to have the support of the UK's Vehicle Certification Agency which confirms that, since the adoption of Regulation 0 an International Whole Vehicle Type Approval (IWVTA) is available for vehicles of M1 category (passenger cars). However, it adds: "This kind of approval cannot be used directly for registering category M1 vehicles in the UK or EU".

The VCA site, though, was last updated on 1 January 2021, and I'm not sure that the Agency has had enough time to take in the detail of the TCA. I reply to Marongiu, repeating that IWVTA had been accepted by the EU and the TCA then requires that each Party shall accept on its market products which are covered by a valid UN type-approval certificate as compliant with its domestic technical regulations.

We've gone full circle, and this time Marongiu doesn't respond. But I don't stop there. There is always the possibility that he is right and I am wrong – incredible though that might seem. Revisiting Article 6 of Annex TBT-1, though, I notice a crucial omission. The requirement is clarified in Article 6.3, making acceptance conditional not just on IWVTA, per se, but on U-IWVTA.

The devil is always in the detail, with the "U", standing for "Universal" – which is the comprehensive standard, an enhanced type approval which the parties have to accept. However, in case there is any doubt, we also have Commission Regulation (EU) 2019/543 which formally updates Annex IV to Regulation (EC) No 661/2009, incorporating Regulation 0 into the Union acquis. Crucially, it includes this amendment to Annex IV:
Where reference is made to a separate Directive or Regulation in the table of Part I, a Universal International Whole Vehicle Type Approval issued under UN Regulation No 0 that includes type-approval under the relevant of the following UN Regulations or an approval issued under the following UN regulations to which the Union has acceded as a Contracting Party to the United Nations Economic Commission for Europe "Revised 1958 Agreement" by virtue of Council Decision 97/836/EC, or subsequent Council decisions as referred to in Article 3(3) of that Decision, shall be considered equivalent to an EC type-approval granted under the relevant separate Directive or Regulation.
In a nutshell, that tells us that the U-IWVTA is "equivalent to an EC type-approval", which obviously means that if a manufacturer presents a vehicle which complies with Regulation 0, it also complies with the EC type approval requirements.

There's actually a neat little summary of the situation here, which says: Vehicles which comply with all of the ECE Regulations required by ECE Regulation No. 0 at the specified amendment levels will be issued with a Universal IWVTA (U-IWVTA) and vehicles with U-IWVTA will be accepted by any Contracting Party which is a signatory to Regulation No 0.  

With this, there is a possible exclusion for the UK in that Article 6.2 states that "Each Party shall only be required to accept valid UN type-approval certificates issued pursuant to the latest version of the UN Regulations it has acceded to". The question, therefore, is whether the UK has acceded to the latest version.

The confirmation here can be found in the United Nations Treaty Collection, which has the UK acceding to Regulation 0 on 19 July 2018. This happens automatically unless the state concerned registers a disagreement.

Thus, the UK is a contracting party to Regulation 0 in its own right, and – as we also see - an U-IWVTA is equivalent to an EC type approval. Every which way, it would seem, the UK and the EU are working to a common code determined by UNECE Regulations.

I may, of course, be wrong, in which case I am open to someone telling me where.

Also published on Turbulent Times.

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