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Type-Approval Requirements conflicting with Recourse against Suppliers

Dr. Ekkehard Helmig - 26. Februar 2018 - Blog

It is -incorrectly- somehow common sense in the automotive industry top down, that in most cases the roote cause for a recall or a service campaign can be allocated at the (sole) responsibility of the supplier of a component or a system. This view is primarily recourse driven rather than based on serious technical analysis and legal assessment of responsibilities in terms of burden of proof. This system of the terms & conditions and other contractual documents of OEMs and 1st TIER suppliers pave the way to collect costs for -alleged- damages from suppliers on a lower level and to shift responsibilities for accidents and injuries to those suppliers.

The system works but it is not always correctly in compliance with the statutory basis, as the case may be, in details depending from national legislations. Here are some selected aspects in my opinion worth for further considerations and discussions:

Let´s, first, assume a system or a component has failed in the field, a safety recall has been established, the OEM has a lot of costs and is looking for someone he can charge for. Let´s, secondly, also assume the system or the component is subject to typeapproval requirements. Let´s, thirdly, assume the technical analysis -with all reservations relative to the validity of the analysis- provides evidence, that the system or the component is either not eligible for the intended purposes or has production related defects. In the common legal practice there is no question that the supplier is responsible for the costs incurred by the OEM. I do not believe that this simple but common view is completely correct and fair.

My doubts are derived from type-approval legislation in Europe. Among others the European type-approval legislation is based on product safety rules e.g. as stipulated in Directive 2001/95/EC backed by the product liability Directive 85/374/EEC. Most important is the Framework-Directive 2007/46/EC. This Directive encompasses all European Directives and Regulations dealing with type-approval requirements for all components, systems and separate technical units including in particular but not limited to emission control systems, brakes etc. All UNECE-Regulations are integral and binding part of European type-approval regulations (Article 35 of Directive 2007/46/EC).

According to Article 5 of Directive 2007/46/EC the vehicle manufacturer has the entire responsibility for the compliance of the vehicle with all legal requirements. Article 5 (1) of Directive 2007/46/EC reads: “The manufacturer is responsible to the authority of the approval process and for ensuring conformity of production, whether or not the manufacturer is directly involved in all stages of construction of the vehicle, system, component or separate technical unit.” That is clear language: Ensuring conformity of production at the manufacturer includes mandatorily ensuring simultaneously conformity of production at all suppliers – including their interdependence and interactions under the controls of the OEM- according to and in accordance with Article 12 Annex X of Directive 2007/46/EC.

It is not possible that the OEM referres to the responsibility of a supplier seeking to reduce his own comprehensive responsibility, and, hence, liability. It must be clearly stated already at this point that all type-approval provisions imposed on the OEM require obedience only to type-approval authorities and the national registration authorities. They are not dedicated to protecting suppliers.

It is additionally to be mentioned: There is also a provision in the Directive 2007/46/EC for the benefit of the individual buyer of the vehicle: According to Article 18 Annex IX of Directive 2007/46/EC the OEM must issue a Certificate of Conformity (hereinafter referred to as „CoC“) to the final buyer of the vehicle that the vehicle complies with all European legislations.

All statements of the OEM compiled in the information package (Article 6(3) of Directive 2007/46/EC) and presented to the type-approval authorities must be comprehensive and must be absolutely true without any deficits in the integrity of the information package. These statements of the OEM to the type-approval authorities include in its entirety all data from the contributions of each supplier: All data relative to the components, systems and separate technical units of each supplier are included in the information package for the vehicle he applies type-approval for as his, the OEM´s, own, intrinsic and generic information to the type-approval authorities. By presenting the information package including the integrity of all supplier´s contributions the OEM pretends that the validation of all supplier´s contributions for the entire vehicle has been performed according to the Confirmation of production executing all requirements of a quality management system according or equivalent to ISO 9001:2008 -or effective as of 15.09.2018 to ISO 9001:2015- (Artikel 12 Annex X) under the regime of the umbrella of Directive 2007/46/EC.

There is the problem: If a system or a component has failed in the field and has triggered the need for a notification to the authorities to initiate e.g. a recall some statements of the OEM in the first, revised or extended (Articles 13ff of Directive 2007/46/EC) information package of the type-approval procedure and relative to the CoC, which is based on the data of the information package, must have been wrong, uncomplete or incorrect.

However, the real world seems to be deviating from the stringent processes of Directive 2007/46/EC: Conformity of production within the actors of the supply chain requires cooperation and communication (ISO 9001:2015, 0.3.3 lit. b); IATF 16949, 0.3.1). From my experience there are often deficits in terms of common decision making for the eligibility of a component, system or separate technical unit or for defect prevention as required by ISO 9001-2015 and IATF 16949. Without digging too deeply at this point I assume at least two reasons are relevant: (i) suppliers often have a perspective mostly button up from their product to the vehicle with a lack of knowledge of the environment of their product under validation and operation requirements and (ii) OEMs do not cooperate sufficiently top down e.g. by not providing all information and details of impacts from the validation level. The lack of cooperation includes different levels of analysis competence. There is most likely a bunch of sources for deficiencies conflicting with the requirements of the unconditioned correctness of all and any statement in the information package of the type-approval process. This is true at the date of applying for the type-approval. But Directive 2007/46/EC demands that what is true at the date of the applications of the type-approval remains true for the series production. That is the purpose of the effectiveness of the quality management system equivalent to ISO 9001:2015 over the life time of the series production as a permanent requirement. Emission control systems e.g. according to EURegulation 2017/1151 (Article 3 (11) and Article 8 (2) is stating that.

Result: These considerations may support strategies for the defense against unlimited recourse against suppliers having in mind considerations who has the burden of prove for what. There is no legal one way for the recourse against suppliers. 


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