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April 2024

Access to OBD, turnaround from the Commission: SSL will not be issued, planned changes to Regulation 858/2018 instead

Massimo Brunamonti

Will the goal be achieved?
The European Court of Justice's ruling on the ATU-CARGLASS v. FCA-Stellantis case is having major consequences throughout the automotive aftermarket sector, and this is now a matter of fact; however, reading from the Commission itself that, because of the ruling, the much hoped-for sector specific legislation (SSL) is being scuttled and only Regulation 858/2018 will be acted upon, is surprising and somewhat worrying.

Indeed, Mark Nicklas, Head of Unit of DG GROW.1.2/GM, writes on behalf of the Commission to AFCAR, the European alliance of which EGEA is also a member, that 'further clarification and the relationship between the rules of IT security on OBD access ... within the framework of type approval, may avoid the need for litigation'. Indeed, the Commission states that it recognises and supports the value of competition and stimulating competitive development, but considers it appropriate to use the delegations it has for updates to Regulation 858/2018 to generate greater 'legal certainty for the application of cybersecurity measures in the context of the recent judgment' of the Court. The Commission's letter to AFCAR goes on to state that the previous approach of developing a sector-specific legislation (SSL), although initiated, is impractical at this stage of the mandate "considering the expected complexity of the ensuing legislative process and the forthcoming parliamentary dissolution".

The news generates perplexity and concern; that the political moment with the impending elections is decidedly inauspicious is unfortunately a fact, but it cannot be a cause for further problems. The question is: will it be possible in such a narrow framework to achieve the goal? Working on Regulation 858 alone necessarily means confining to the type-approval of motor vehicles; it will not be easy to make it exhaustive of the whole range of potential problems with access to on-board data. The Commission has announced that its aim is to draw up a draft of a new Annex X to the Regulation by the summer; this means that the work will in any case be completed by the next Commission with all the consequences and uncertainties that this entails. The working table is open, AFCAR is actively participating as a representative of the independent aftermarket and will not miss the opportunity to monitor events and make its contribution to the operation.

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