velobiz.de, 2020/10/14

App function brings VanMoof customers in difficulties

Illegal or not? – The news spread through daily media like wildfire: VanMoof customers would ride illegally on their stylish e-bikes. What is the expert opinion on that?

Currently, the Dutch e-bike manufacturer is riding a wave of success and expansion. It is in particular in Germany that the company has a presence with numerous pop-up showrooms. According to their own statements VanMoof achieves astonishing growth rates in this country, not least since the new generation of vehicles has been presented on the market. The path to further rapid growth seems to be safe by multi-million investors (...). The news that has been making the rounds in the daily press over the past few days did not match at all these success stories: There are accounts of VanMoof riders that had been asked by the police to pay. The accusation: VanMoof e-bikes would be moved illegally on the roads. Background of these accusations is an app function controlling the motor setting of the e-bikes. In detail, it is about a setting that allows the change of the location and at the same time the change from EU to US-mode. Such a change of mode has far-reaching effects on how the vehicle has to be classified according to the German Road Traffic Licensing Regulations (StVZO). While in the EU-mode (up to a motor assistance of 25 km/h) the e-bike is legally considered as bicycle, i.e. it can be ridden without registration and insurance, it rolls in the US-mode (and therefore up to a speed of 32 km/h) as speed pedelec including all registration requirements which then apply and a compulsory driving licence.

Tricky starting point

Far more tricky is the question whether the mere presence of the app and the possibility of using it suffices for the rider to be riding illegally on the road. At any rate, this is how it was put in various reports in the daily media. Ulf-Christian Blume, lawyer and business consultant in the cycle industry is sceptical. “It is of course difficult to say exactly how the case went, but from the legal point of view it seems to me difficult to conclude that if a vehicle only offers the possibility to act in a way that does not comply with the road traffic regulations, the driver automatically has to pay a fine.” Blume substantiates this with a comparison: “When I drive a sports car with a maximum speed of 300 km/h in a zone where the speed is limited to 30 km/h, this is ok until I exceed 30 km/h.”

Another issue is whether the manufacturer is allowed to market the e-bike in Germany as a pedelec if there is a relatively easy way to change the motor settings as described. Bicycle expert Dirk Zedler who has been working on the subject for some time in the e-bike working group has a clear opinion on this: “From my point of view, and here I very clearly agreed with Sigfried Neuberger, who unfortunately left us far too early, such a thing is not covered by the 'bicycle' classification.” Which means: If there is the possibility that the pedelec is “opened” via app, it is a motor vehicle including all consequences. Zedler cites as basis the EN15194 standard which is binding for pedelecs and thus not complied with. According to Zedler, “the standard requires unambiguously that the manufacturer must prevent tuning.” In the meantime, other manufacturers have also back-pedalled.

Update is to provide clarity

This is what VanMoof will also do. According to media reports, the Dutch company intends to provide an update for the app to existing users and thus prevent the possibility of switching modes in this country. Whoever carries out this update and can prove it, should then in any case be legally on the road again. Without update, however, VanMoof riders could face further trouble, if they are involved in an accident. “Then the question will arise as to what percentage the blame is borne by the rider, even though he did not primarily make a riding mistake.” Zedler concludes: “As a result, the legal situation in Europe is actually clear.” However, there has not yet been a legal dispute in court with tangible sentence and judgements. In the end, one can only urge not to take this risk.

Author: Jürgen Wetzstein

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