National evaluation of non-road mobile machinery suspected of presenting a serious risk or not being in conformity
1. Where, based on their own market surveillance activities, or based on information provided by an approval authority or a manufacturer or based on complaints, the market surveillance authority of a Member State has sufficient reasons to believe that non-road mobile machinery presents a serious risk or is not in conformity with the requirements laid down in this Regulation, it shall carry out an evaluation of the non-road mobile machinery concerned with respect to the relevant requirements laid down in this Regulation.
2. The relevant economic operators and the relevant approval authorities shall cooperate fully with the market surveillance authorities.
National procedures for dealing with non-road mobile machinery presenting a serious risk or not being in conformity
1. Where, after having performed the evaluation pursuant to Article 33, the market surveillance authority of a Member State finds that non-road mobile machinery presents a serious risk or is not in conformity with this Regulation, it shall require without delay that the relevant economic operator takes all appropriate corrective measures without delay to ensure that the non-road mobile machinery concerned no longer presents that risk or is brought into conformity. That period shall be proportionate to the seriousness of the risk or non-conformity.
2. Economic operators shall, in accordance with the obligations set out in Articles 7 to 14, ensure that all appropriate corrective measures are taken in respect of all concerned non-road mobile machinery that they have placed on the market, registered or entered into service.
3. Where economic operators do not take appropriate corrective measures within the relevant period referred to in paragraph 1 or where the risk requires rapid action, the national authorities shall take all appropriate provisional restrictive measures to prohibit or restrict the making available on the market, the registration, including a prohibition from circulating on public roads, or the entry into service of the concerned non-road mobile machinery, on their national market, or to withdraw them from that market or to recall them.
4. Article 18 of Regulation (EU) 2019/1020 shall apply to the restrictive measures referred to in paragraph 3.
Corrective and restrictive measures at Union level
1. The national authority taking either a corrective or a restrictive measure in accordance with Article 34 shall notify the Commission and the national authorities of other Member States without delay, by means of the information and communication system referred to in Article 34(1) of Regulation (EU) 2019/1020.
It shall also inform without delay the approval authority that granted the approval about its findings. In the cases of non-road mobile machinery that presents a serious risk those corrective or restrictive measures shall also be notified via the Safety Gate Rapid Alert System referred to in Article 25 of Regulation (EU) 2023/988 of the European Parliament and of the Council ( 15 ) .
The information provided in accordance with the first and second subparagraphs shall include all available details, including the data necessary for the identification of the concerned non-road mobile machinery, its origin, the nature of the alleged non-compliance or the risk involved, the nature and duration of the national measures taken, and the arguments put forward, when those arguments are put forward, by the relevant economic operator.
2. The Member State that takes the measure shall indicate whether the risk or the non-compliance is due to the following:
(a)
the failure of the non-road mobile machinery to comply with this Regulation; or
(b)
shortcomings in the relevant regulatory acts adopted pursuant to this Regulation.
3. Member States other than the Member State that takes the measure shall inform, within 1 month of the notification referred to in paragraph 1, the Commission and the other Member States of any measures they have adopted and of any information at their disposal relating to the non-compliance or the risk of the non-road mobile machinery concerned, as well as, in the event of disagreement with the notified national measure, of their objections.
4. Where, within 3 months of the notification referred to in paragraph 1, no objection has been raised by either another Member State or the Commission in respect of a notified national measure, the other Member States shall ensure that similar measures are taken without delay within their territories in respect of the non-road mobile machinery concerned.
5. Where, within 3 months of the notification referred to in paragraph 1, another Member State or the Commission raises an objection in respect of a notified national measure, or where the Commission considers that a notified national measure is contrary to Union law, the Commission shall consult the Member States concerned and the relevant economic operator or operators without delay.
6. On the basis of the consultation referred to in paragraph 5, the Commission shall adopt implementing acts to decide on harmonised measures at Union level. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 49(2).
7. The Commission shall immediately communicate the decision referred to in paragraph 6 to the relevant economic operator or operators. Member States shall enforce measures contained in the acts referred to in paragraph 6 without delay and shall inform the Commission accordingly.
8. Where the Commission considers that a notified national measure is unjustified or contrary to Union law, the Member State concerned shall withdraw or adapt the measure, in accordance with the Commission decision referred to in paragraph 6.
9. Where the risk or non-compliance is attributed to shortcomings in regulatory acts adopted pursuant to this Regulation, the Commission shall propose the necessary amendments to the acts concerned.
10. Where a corrective measure is considered to be justified in accordance with this Article or is subject to the implementing acts referred to in paragraph 6, that measure shall be available free of charge to the owners of the affected non-road mobile machinery. Where repairs have been carried out at the registration holder’s expense before the adoption of the corrective measure, the manufacturer shall reimburse the cost of such repairs up to the cost of the repairs required by that corrective measure.
Non-compliant EU type-approval
1. Where an approval authority finds that an EU type-approval that has been granted by the approval authority of another Member State is not in compliance with this Regulation, it shall refuse to recognise that approval.
2. The approval authority shall notify its refusal to the approval authority that granted the EU type-approval, to the approval authorities of the other Member States, and to the Commission. Where within 1 month of the notification, the non-compliance of the EU type-approval is confirmed by the approval authority that granted the EU type-approval, that approval authority shall withdraw the EU type-approval.
3. Where, within 1 month of the notification referred to in paragraph 2, an objection has been raised by the approval authority that granted the EU type-approval, the Commission shall consult the Member States without delay, in particular the approval authority that granted the EU type-approval and the relevant economic operator.
4. On the basis of the consultation referred to in paragraph 3 of this Article, the Commission shall adopt implementing acts to decide if the refusal of recognition of the EU type-approval referred to in paragraph 1 of this Article is justified. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 49(2).
The Commission shall immediately communicate the decision referred to in the first subparagraph of this paragraph to the relevant economic operators. The Member States shall implement such acts without delay and shall inform the Commission accordingly.
5. Where the Commission establishes that an EU type-approval that has been granted is not in compliance with this Regulation, it shall consult the Member States without delay, in particular the approval authority that granted the EU type-approval and the relevant economic operator.
On the basis of consultations referred to in the first subparagraph of this paragraph the Commission shall adopt an implementing act to decide on the refusal of the recognition of EU type-approval referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 49(2).
6. Articles 33, 34 and 35 apply to non-road mobile machinery that is the subject of a non-compliant EU type-approval and that has already been made available on the market.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
