EU vehicle law ‘risks divergence between Great Britain and Northern Ireland’

The relevant regulation, EU Regulation 2021/1244, which was adopted in May 2021 and will apply from July 2023, has standardised access to vehicle on-board diagnostics information and repair and maintenance information.

The regulation requires certificates of competence to be issued to suitable repairers and technicians, and for ‘trust centres’ to validate requests from technicians to access repair and maintenance information from vehicle manufacturers’ servers.

This new regulation amends and adds to the important EU Regulation 2018/858, which provides the basis for type-approval of all new motor vehicles accessing the EU market.

The Northern Ireland (NI) Protocol, which gives the region access to the EU’s single market, also requires it to comply with certain aspects of the trading bloc’s goods rules, including both these regulations.

At the same time, a version of regulation 2018/858 also applies in Great Britain (GB), after the European Union (Withdrawal) Act 2018 incorporated almost all former EU legislation into the UK legal system as ‘retained EU law’.

David Thorneloe, retained EU law expert at Pinsent Masons, said the present legal position can create a “confusing situation” where “two different versions of the same rule apply in different parts of the UK at the same time: the ‘EU law’ version in NI, and the ‘retained’ version in GB.”

“Now that the EU has amended EU Regulation 2018/858 by making EU Regulation 2021/1244, it has created the potential for divergence between NI and GB.”

“It will be part of the EU law version when it applies in 2023, and will automatically apply in NI under the Protocol, without any further domestic legislation,” he added.

“But the new amendment is not part of ‘retained EU law’ - or otherwise part of domestic law in GB - unless the UK’s Department for Transport (DfT) decides to pass domestic legislation copying its requirements in GB.”

Thorneloe said the possibility of regulatory divergence poses a challenge for the DfT.

“The DfT will want to balance the risks of regulatory divergence as between GB and NI, and as between GB and EU on the one hand, and the risks of increased regulatory burden on GB traders on the other. It will want to bear in mind that the EU is still the UK’s largest export market in the automotive sector,” he said.

The DfT is currently working on a review of various aspects of UK vehicle regulations.