Bike Europe’s e-bike whitepaper is wrong for UK, say orgs

The Bicycle Association of Great Britain and the Motorcycle Industry Association have issued a joint statement raising UK-specific concerns about a recent e-bike whitepaper from the Bike Europe trade magazine.

The statement notes that the whitepaper says electric bikes intended for off-road use can avoid the requirement to be type approved before sale, even if they fall outside the strict limits on continuous rated power (250 W) and motor cutout speed (25 km/h) for an electric bike in the UK to be treated in law as a bicycle, not a motorbike.

"This is not the full story for UK consumers and suppliers," say BAGB and MCIA.

"There are in fact additional strict regulations which mean that to enjoy the same off-road access and status as a normal bicycle, an electric-assist mountain bike absolutely must be within the 250 W power and 25 km/h cut-off limits.

"As well as the EU type approval regulations which Bike Europe has summarised (which apply to the sale of
new bikes), there are also strict national regulations which control the legal use of motor vehicles. In the
UK, only electric bikes with power assist rating of 250 W or less, cutting out at or below 25 km/h, are treated in national law as “not motor vehicles”.

"For any electric bike which does not meet these limits, UK motor vehicle regulations apply. These include requirements for registration (for which type approval is required), tax, insurance, driving licence and the need to wear a motorcycle helmet. These apply to any vehicle intended to be used “on the public highway”, which includes tracks, bridleways, paths and common land, both on or off road.

"It is only vehicles which are only ever intended to be used away from the public highway (i.e. exclusively on private land not open to the public, with the landowner’s permission) which are not subject to type approval before they can legally be used in the UK, if they exceed the 250 W and 25 km/h limits. Such vehicles must still comply with CE marking requirements, which includes compliance with the Machinery Directive. But these vehicles cannot legally be used at all on the public highway (roads, tracks, on common land or cycle paths, be they on of off road)."

In summary, says the joint statement, "nothing has changed."

To be used legally in the UK wherever bicycles may be used, electric mountain bikes must stick to the well established 250 W power and 25 km/h cut-off speed limits, stresses the statement.

"Any electric mountain bike with power over 250 W and/or cut-off speed above 25 km/h is a motorbike in UK law, requiring registration and type approval for legal use on the public highway (only where it is legal to drive motorbikes, of course). The “public highway” covers both on-road and off-road riding, wherever the public have access."

Jack Oortwijn, editor in chief of Bike Europe, disputes that the magazine’s whitepaper could cause confusion.

He wrote: "All electric bikes exceeding the 25 km/h and/or the 250W limits are subject to European type-approval, except a few categories as listed in the White Paper. One of these categories is ‘vehicles primarily intended for off-road use and designed to travel on unpaved surfaces’. The problem lies in the word ‘primarily’. If the exclusion had stated ‘exclusively’ then it probably would have left no room for discussion. The word ‘primarily’ however leaves some room for using the vehicle on-road for instance as you are on your way to ‘unpaved surfaces’.

"This exclusion was originally not intended for electric mountain bikes but for off-road motorcycles. Unfortunately, for electric mountain bikes it creates the opportunity to circumvent type-approval. Any electric bicycle that more or less looks like a mountain bike, though designed for on-road use, may well be classified as ‘primarily intended for off-road us and designed to travel on unpaved surfaces’ by manufacturers. If that is the case, then the bike can be put on the market without type-approval or compliance with any other technical rules for that matter and without having to comply with any speed or motor output limitations by construction. Furthermore, it cannot be categorized as an L-category vehicle, for instance as a moped or a motorcycle."

Oortwijn added:

"As explained in the White Paper, next to technical vehicle regulations there are traffic code rules and other terms of use (insurance, helmets, age limits, …). Whereas the technical regulations are developed and implemented at European level, every member state still has the competence to design its own traffic code rules and terms of use. Consequently, the UK has the competence to design specific rules as to where and how ‘vehicles primarily intended for off-road use and designed to travel on unpaved surfaces’ may be used.

"The UK however does not have the competence to categorize these vehicles as motorbikes as defined in Regulation 168/2013. Therefore, the statement in the BAGB-MCIA press release ‘any electric mountain bike with power over 250 W and/or cut-off speed above 25 km/h is a motorbike in UK law’, is incorrect.

"When the European Commission was drafting the new type-approval Regulation, this loophole in the text was raised and Parliament and Council were presented with a draft amendment to solve the issue. The proposal was to formulate the exclusion as follows ‘vehicles primarily intended for off-road use and designed to travel on unpaved surfaces except L1 and L3 vehicles’. This would have excluded electric bikes from the exclusion. However, the proposed amendment was disputed by (then) COLIBI/COLIPED (now CONEBI), the European trade association of which the BAGB is a member. They argued that the exclusion would not cause any problems.

"Today, quite a few electric bikes exceeding 25 km/h assistance and 250W are on the road without having been type-approved. There are practices in use, whereby dealers sell these bikes whilst making their customers signing statements that they acknowledge that their vehicles may not be used on public roads. It will take the first court case to know with certainty whether the term ‘primarily’ causes any problems."

Annick Roetynck of the Light Electric Vehicle Association agrees with Oortwijn.

"The BAGB and MCIA have it wrong, whilst the information published by Bike Europe is correct," she said.

"Electric bikes intended for off-road use can most certainly ‘avoid to be type-approved before sale’. As a matter of fact, they are explicitly excluded from European type-approval. This doesn’t mean that they can be categorized as a bicycle, but they cannot be categorized as a moped or a motorcycle either. They fall into a legal void and that is exactly the root of the problem. Article 2(g) of Regulation 168/2013 stipulates the exclusion from type-approval of ‘(g) vehicles primarily intended for off-road use and designed to travel on unpaved surfaces’.

If you are using your vehicle on-road, claiming to be on your way for use off-road, who is going to contest the fact that you are using your vehicle primarily ‘on unpaved surfaces’? The lack of any further technical specifications creates the opportunity to easily categorize an electric bike as intended for off-road use, thus avoiding compliance with the expensive type-approval or any other technical rules for that matter.

"In 2012, as the European Commission was still drafting Regulation 168/2013 on type-approval, the European Twowheel Retailers’ Association officially pointed out the loophole to the European Commission, Parliament and Council. ETRA proposed to amend the exclusion, by adding that the exclusion did not apply to L1 and L3 vehicles. This proposal was opposed by a few organisations among which CONEBI, still COLIBI and COLIPED at the time. They did not agree with the conclusion that the draft created a loophole. In the meantime, we have been notified of dealers who sell electric bikes that are not type-approved and who make their customers sign a paper, which states that the vehicle is not for use on public roads. This shows that the loophole is being used.

"LEVA-EU believes that Article 2(g) does create a problem and therefore needs amending either by replacing the word ‘primarily’ by ‘exclusively’ or by specifying that the exclusion does not apply to L1 and L3-category vehicles."

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