Tesla's ability to upgrade software over the air could create problems with "type approval" regulations in Europe and beyond.


Twitter is choppy with the news that Transportstyrelsen, the equivalent of NHTSA, could be looking for a sales order for all Tesla cars entering the Nordic country. What triggered the buzz was a report in Sweden's respected Svenska Dagbladet, saying the regulator is disagreeing with the practice of updating the Tesla by air. The newspaper quotes regulator spokesman Anders Gunneriusson as saying: "We have an ongoing Article 29 on Tesla. That means we are investigating whether Sweden should prevent Tesla from selling cars for six months if there is a serious traffic safety risk. "

That brings a long-standing controversy: Tesla's Over-the-air update violates EU rules and possibly rules affecting large parts of the world, with the exception of the US?

Before we get into that, a little background for Swedish history: the subject is not new, Sweden has been studying this since 2015. In November of that year, the Swedish regulator wrote a letter to his Dutch partner agency, RDW ( or Rijksdienst voor het Wegverkeer), saying that, in his view, Tesla's 'autopilot' should not be approved. A month later, Sweden expressed its concern in a letter to the European Commission, provoking several inconclusive meetings. Now the Swedish regulator is considering terminating the case but, according to a spokesman, "if there is an accident in Sweden linked to that, we will intervene and we will open it again."

This issue is not about Tesla autopilot colliding with EU rules on standalone cars. There are no EU rules governing autonomous cars other than a law across the EU that famously requires the driver "must be in control of the vehicle at all times." This is about Tesla's OTA updates, and the possibility that they could conflict with rules governing type approval in the EU and many other countries in the world.

Type approval rules are a thorny issue. To transcend them completely, it must be a combination of a lawyer and an engineer. I am neither, but I received indoctrination when making communication for a very large German automaker, and I received a thorough education on the subject when I was crazy enough to get into the automotive parts business for a while.

According to EU legislation, a car must be tested by the authorities before being allowed to enter the road. Testing every car would burden even the enormous bureaucracy in Europe and therefore the regulator is willing to test only one (or some) cars of the same type and issue an approval, provided that the assembler or importer responsible for the sale swears that all others cars of the same type will be exactly the same. Once the type approval has been issued, the approved product will not be changed. Of course, technical progress advances and engineering changes happen. Type approval allows this, but only if type approval receives an approved amendment.

What if Tesla (or any other automaker) sends an update overnight that changes the tested and approved parameters of the car or add features that were not there when the car received its approval? According to the letter of the law, these upgrade needs are illegal unless the type approval is changed. The Swedish regulator's spokesman reiterated this rule for the Svenska Dagbladet.

According to Svenska Dagbladet, manufacturers of cars such as BMW and Mercedes make changes to the software only after receiving approval. "Tesla is not using the same procedure," the paper writes.

The fact that OTA conflicts with the letter of the law is nothing new. The subject has been discussed for years (and until now inconclusively) between the actors in the UN working groups, the EU and elsewhere. Car manufacturers are represented through their global OICA organization. "Tesla is not a member," writes the Swedish newspaper. So why did these concerns never go on the air? "OEMs do not want to rock the boat and jeopardize their own OTA plans," an informed contact tells me at the type approval company.

The bottom line so far is that the Tesla OTA is operating in a legal gray zone, and it can darken quickly if the Swedish matter runs out. Should an accident lead the Swedes to determine that the Tesla OTA is against the law, "the result would be dramatic," writes Svenska Dagbladet. According to the EU Framework Directive 2007/46, approvals issued by a European Member State are valid throughout Europe. However, Article 29 of that Directive specifies that, if there is a serious risk to road safety, any Member State may, for a period of up to six months, refuse to register such vehicles or permit the sale or entry into within its territory. these vehicles. "

If Sweden did this, it could snow in Europe and beyond. According to Article 29, the European Commission would need to be involved, and the Commission would have a serious discussion with the agency that issued the type approval, in this case the RDW. This could theoretically lead to an EU-wide loss of type-approval. A more likely result would be that Tesla is required to ensure approval of each OTA update before its execution, which could also involve providing documents to Tesla US customers documenting the change. In many EU countries, particularly in Germany, changes or adjustments "that alter the functionality of a part of a vehicle" need to be entered in the car registration documents. If the subject starts to boil, it is quite possible that an OTA nightly update requires all Tesla customers to visit their motor vehicle department to update their documents (cost between 11 and 31.50 euros).

The issue may even become a worldwide problem. The European approval system is based on United Nations (UN / ECE) regulations and is therefore approved by several countries around the world. The rule that prevents changes after the fact is one of the fundamental principles of the UNECE agreement with the easy-to-remember title: "United Nations harmonized technical standards for wheeled vehicles, equipment and parts that can be assembled and / or used in vehicles of wheels. and the Conditions for the Reciprocal Recognition of Approvals Awarded on the basis of these United Nations Regulations. "

If genius can not be contained in a Swedish bottle, OTA can turn into a world nightmare. Tesla pray better so your cars do not collide with any moose while they are in Sweden.


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