Sep 26, 2008 ... The petitioner states that since 1985, France, under Article R311-1 of the ... Code
(Code de la Route), has required motorcycles sold and ...
EUROPEAN PARLIAMENT 2004
2009
Committee on Petitions
26.09.2008
NOTICE TO MEMBERS Subject:
1.
Petition 1463/2007 by Frederic Brozdziak, (French), on behalf of the Fédération Française des Motards en Colère (FFMC), on Directive 95/1/EC of the European Parliament and of the Council
Summary of petition
The petitioner states that since 1985, France, under Article R311-1 of the French Highway Code (Code de la Route), has required motorcycles sold and registered in France to be restricted to 73.6 kW, or 100 bhp. In 1992 EU Member States harmonised the procedures for the transposition of Directive 95/1/EC on two-wheel motor vehicles. France, the only Member State to restrict motorcycles to 73.6 kW, has won the right to maintain its national legislation. Article 3 of the Directive required the Commission to carry out a comprehensive study to establish whether there was a link between accidents and maximum engine power above 74 kW. This study did not find any link between accidents and motorcycle engine power. Ten years after the publication of this study, France is still restricting its motorcycles to 73.4 kW, creating a barrier to the free movement of persons and goods and to free competition. 2.
Admissibility
Declared admissible on 29 May 2008. Information requested from Commission under Rule 192(4). 3.
Commission reply, received on 26 September 2008.
The petitioner contests the legality under Community law of Article R311-1 of the French Highway Code (Code de la Route), which provides that motorcycles sold and registered in France do not have a maximum net power in excess of 73,6 kW, or 100 bhp.
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The petitioner notes that the restriction contained in the French Highway Code is recognized in Community law on the basis of a derogation in Article 6 of Directive 95/1/EC that allows Member States to restrict the registration of motorcycles to a maximum net power of 74 kW1. However, the petitioner refers to Article 3 of Directive 95/1/EC which provides that within two years of the date of adoption of the Directive the Commission shall carry out a comprehensive study to establish whether there is a link between road accidents and maximum engine power of motorcycles above 74 kW and, if necessary, to take new legislative measures. It is the petitioner's view that the study which was carried out did not provide any justification for the link. Consequently, the petitioner considers that in the absence of proof that the derogation is justified, the Commission's inaction is unlawful. By virtue of Directive 2002/24/EC relating to the type-approval of two and three-wheel motor vehicles, Member States shall not prohibit the placing on the market, sale, entry into service or use of new vehicles complying with this Directive. Furthermore, only vehicles complying with this Directive may be presented for initial registration (Article 12). Conformity with Directive 2002/24/EC is determined by reference to the technical prescriptions set out in Annex 1 ("List of Requirements for the Purpose of Vehicle TypeApproval") in Directive 2002/24/EC. Heading No.18 of Annex 1 provides that in relation to the methods of measuring the maximum torque and maximum net power of the engine, the vehicle in question must satisfy the technical prescriptions that are defined in Directive 95/1/EC. Directive 95/1/EC lays down harmonized technical prescriptions for the methods of measuring the maximum design speed, maximum torque and maximum net engine power. The Directive does not define maximum levels of speed, torque or power. Instead, Article 6 expressly allows Member States to refuse registration on their territory of vehicles having a maximum net power of more than 74 kW. In light of the derogation in Article 6, the Commission considers that Article 6 clearly allows Member States to prohibit registration in relation to such vehicles with a maximum net power above 74 kW. French transposition France has notified a complete transposition of the Directives 2002/24/EC and 95/1/EC into its national law. The transposition of these Directives relates to type-approval and initial placing on the market of new vehicles within its scope. The limitation of maximum net power for motorcycles under French law is contained in Article 26 of the Ministerial "Arrêté" of 2 May 2003 related to type-approval and technical regulation of two or three wheeled vehicles and quadricycles.2 1
Directive 95/1/EC of the European Parliament and of the Council of 2 February 1995 on the maximum design speed, maximum torque and maximum net engine power of two- or three-wheel motor vehicles (OJ L 52, 8.3.1995, p.1-40). 2
Arrêté du 2 mai 2003 relative à la reception et à la réglementation technique des véhicules à moteur à deux ou trios roues et des quadricycles à moteur et de leurs systèmes et équipements, JORF n°125, 31/5/2003, p.9272.
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Article 26 of the French law is based on the net power at the wheel whereas the Directive 95/1/EC calculates according to net power at the crankshaft of the engine. 1 This difference in test method is taken into account in Article 26 by assuming a loss of net power of 1,5 or 2,0 kW (depending on the type of gearbox) between the crankshaft and the wheel. This is consistent with the approach of Directive 95/1/EC which states that the efficiency of the gearbox must be taken into account when measuring net power.2 It is the Commission's view, therefore, that the French limitation in its type-approval legislation is in conformity with the limitation in Article 6 of Directive 95/1/EC. Separately, for purposes of road-traffic control, and as described by the petitioner, there is a limitation of 73,6 kW regarding the maximum net power of motorcycles registered in France that is contained in the French Highway Code. As the limitation in the French Highway Code is also entirely consistent with the derogation set out in Article 6 of Directive 95/1/EC, it is considered by the Commission that there are no grounds to launch infringement proceedings against France. Article 3 of Directive 95/1/EC provides: "Within two years of the adoption of this Directive the Commission shall carry out a comprehensive new study to establish whether there is a link between accidents and maximum engine power above 74 kW. The study shall collate and evaluate the latest scientific research with a view to establishing definitive policy recommendations on this subject. On the basis of the study's conclusions, the Commission shall, if necessary, propose new legislative measures." In relation to Article 3 of Directive 95/1/EC, a study has indeed been carried out by the TNO, a Dutch technical institute, in order to establish whether there is a link between accidents and maximum engine power above 74 kW.3 The TNO study indicates that the link between accidents and maximum engine power is difficult to establish because the power of motorcycles is rarely indicated during accident enquiries undertaken by Member States. Instead, on the basis of an analysis undertaken with Dutch police, it is emphasized that engine power can play a role in some type of accidents but always in conjunction with other factors (such as behaviour, experience of the driver, alcohol, etc.). A further investigation was not conducted because the confluence of data made it extremely difficult to analyse whether there is a unique relationship between motorcycle performance properties and accident occurrence. The EC case law clearly states that in the exercise of the powers that are conferred with respect to the approximation of laws, the Community institutions must be recognized as 1
Point 1.1 of Appendix 2 of Annex II to Directive 95/1/EC.
2
Point 1.1, ibid.
3
TNO report motorcycle power 74 kW study – Phase B.
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enjoying a discretion in relation to the stage in which harmonization is to take place, having regard to the particular nature of the field subject to coordination.1 The Commission considers that the continued existence of the derogation under Article 6 of Directive 95/1/EC falls within the discretion of the Community institutions in respect of the approximation of laws. Furthermore, in light of the conclusions reached in the TNO study, the Commission has properly exercised its discretion by not proposing thus far any modification of Article 6 of Directive 95/1/EC. In conclusion, the Commission considers that no action can be taken against France on the basis of the current EC legislation. All EU Member States have the possibility to invoke the derogation contained in Article 6 of Directive 95/1/EC. The fact that certain Member States have not chosen to do so does not render illegal the choice of other Member States in respect of their actions. Consequently, the Commission does not propose to take infringement proceedings against France. The decision to propose an amendment to Article 6 of Directive 95/1/EC falls within the discretion of the Community institutions. A study based on Article 3 of Directive 95/1/EC has taken place. According to Article 3, on the basis of the conclusions, the Commission "shall, if necessary, propose new legislative measures." Based on the findings of the TNO study, the Commission has decided thus far that no new measures are necessary. This exercise of the Commission's discretion cannot be viewed as unlawful under Community law.
1
See, for example, Case C-39/90, Denkavit Futtermittel GmbH v. Land Baden-Württemberg, ECR 1991-I, p.3069, at para. 26.
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