Germany tightens provisions on fines for infringements of EU type approval law

On 15 March 2023, the German Federal Ministry for Digital and Transport adopted the Regulation on prosecution of infringements of EU type approval law (Verordnung über die Ahndung von Zuwiderhandlungen gegen EU-Typgenehmigungsvorschriften) (the “Regulation”). The Regulation now makes it possible to impose significantly higher penalties for infringements of EU type approval law by motor vehicle manufacturers, dealers, etc.

The previous legal situation was comparably milder. Although practically all EU regulations and directives make it obligatory for Member States to lay down effective and dissuasive rules on penalties (see for example Article 84 of Regulation (EU) 2018/858 and Article 72 of Regulation (EU) 167/2013), Germany complied only to a limited extent. Up to now, only a few infringements have even resulted in fines, and the fines did not exceed €2,000 or €5,000 (section 37 of the German regulation on the EC motor vehicle type acceptance regulation (EG-Fahrzeuggenehmigungsverordnung) in conjunction with sections 23(2) and 24 of the previous version of the German Road Traffic Act).

In 2021, the legislator then laid the legal foundation for more severe penalties with a new version of section 24 of the Road Traffic Act, but the implementation was delegated to the Federal Ministry for Digital and Transport, which initially remained inactive.

Now, the Ministry has activated the new, significantly expanded rules on fines. The new Regulation provides for wide-ranging penalty options and makes fines of up to €5,000,000 possible in conjunction with section 24(3) and (4) of the Road Traffic Act in conjunction with section 30(2), third sentence of the German Act on Administrative Offences, with the range of applicable fines varying according to the infringement. For example, the Regulation now provides for the highest range of fines (see in particular section 5(4) of the Regulation) for the use of illegal defeat devices, which has been particularly important in the last several years. It goes without saying that the new rules do not apply to infringements committed before the new Regulation entered into force due to the principle of legality (Article 103(2) of the German constitution (Basic Law) and Article 49(1) of the EU Charter of Fundamental Rights).

In the light of this new regulation on fines, it is all the more important, especially for motor vehicle manufacturers, to be even more careful to comply with the requirements of EU type approval law.