Abstract
The essay describes the evolution of European Union law on vehicle pollution and the measures taken, at European level, in the period before and immediately following the Dieselgate. The scandal, which broke out in the United States, quickly spread worldwide: several doubts have been raised about the efficiency of European institutions and especially the Commission. The Dieselgate has therefore contributed to raise questions regarding the quality of European Union law in the light of environmental protection. The essay deals particularly with the legality of new limits on NOx emissions levels established by Commission Regulation 2016/646 of 20 April 2016 and the introduction of new emission tests to be executed on the road in place of the traditionally laboratory-based tests adopted by car approval authorities. The essay also analyses the work done by the Committee of Inquiry into Emission Measurements in the Automotive Sector to investigate alleged contraventions and maladministration in the application of European Union law in relation to emission measurements in the automotive sector.
The present work was discussed and jointly set by Marco Frigessi di Rattalma and Gabriella Perotti. Sections 3 and 4 are to be attributed exclusively to the latter.
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Notes
- 1.
- 2.
As the so-called Dieselgate does not concern emissions of carbon dioxide, we will not examine the regime of that pollutant in this study.
- 3.
O.J. L 76/1 (1970).
- 4.
O.J. L 190/1 (1972).
- 5.
O.J. L 242/1 (1991).
- 6.
O.J. L 171/1 (2007). The works on the reform of Regulation 715/2007 are still ongoing. See the report on the proposal for a Regulation of the European Parliament and of the Council amending Regulations (EC) No. 715/2007 and (EC) No. 595/2009 as regards the reduction of pollutant emissions from road vehicles (COM(2014)-28final-2014/0012(COD)) by the Committee on the Environment, Public Health and Food Safety of the European Parliament. The proposal consists of a set of different, relatively heterogeneous measures, mostly aiming at reducing noxious emissions from vehicles for human health. More in particular, they concern the setting of specific NO2 emission limits within the wider NOx emission range.
- 7.
See Visaggio (2012).
- 8.
See Snell (2002).
- 9.
Maximum harmonization means a complete harmonization that does not leave any margin to deviate from a requirement or a level of protection laid down by an EU measure. See Lenaerts and Van Nuffel (2011).
- 10.
O.J. L 263/1 (2007). It should be noted that on 27 January 2016, a Proposal for a Regulation of the European Parliament and of the Council on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles COM(2016)-31final-2016/0014(COD) has been put forward by the Commission. This proposal aims at a general reform of the present regime of type approval. In the Commission staff working document-impact assessment accompanying the Proposal for a Regulation of the European Parliament and the Council on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (SWD(2016)-9final), it is stated at page 17 that: “The current system clearly proved deficient in dealing with a large situation of non-compliance such as the one encountered with VW. It also became clear that the need for a swift and losely coordinated response at the EU level clashed with the absence of effective means for the European Commission to get directly involved under the current rules. Even for obtaining the relevant information, the European Commission depended on the willingness of national authorities and vehicle manufacturers to cooperate.”
- 11.
If EU law is adopted in stages or is limited to certain aspects, the Member States retain the right to apply their national measures, provided that that they can be justified in Community law. See case Nijman (C-125/88 (1989) ECR p. 3533).
- 12.
Reliance on Article 36 becomes progressively vain as complete harmonization is achieved. See case Van Bennekom (C-227/82 (1983) ECR p. 3883).
- 13.
Case Commission of the European Communities vs. Kingdom of Belgium (C-102/79 (1980) ECR p. 1473, para. 11).
- 14.
Case Commission of the European Communities vs. United Kingdom (C-60/86 (1988) ECR p. 3921).
- 15.
See the administrative proceedings brought by VAG Sverige AB (C-329/95 (1997) ECR p. I-2675).
- 16.
In that case, the Commission shall, within six months of the notification, approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market. In the absence of a decision by the Commission within this period, the national provisions referred to in paragraph 5 shall be deemed to have been approved. When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months. Paragraph 4 of Art. 114 provides for the case that a Member State deems it necessary to maintain national provisions on grounds relating, inter alia, to the protection of the environment. Recourse to paragraph 4 concerning the maintenance of more stringent national regulations, preexisting to the introduction of harmonized law, does not seem of any practical relevance with regard to legislation on pollutant emission control, given the 35-year-old EU harmonization in this area of law. See Visaggio (2012), p. 251.
- 17.
Case Netherlands vs. Commission (C-405/07 ECR (2008) p. I-08301).
- 18.
The wording of Art. 5(3) anticipates the wording of Art. 290 TFEU concerning “delegated acts,” which provides that “1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.”
- 19.
Council Decision 1999/468/EC, O.J. L 184 (1999), so-called Second Comitology Decision.
- 20.
Council Decision 2006/512/EC, O.J. L 200 (2006). This decision of the Council responded to the wish of the European Parliament to be able to exercise control over the implementation of acts adopted by codecision, in addition to the control exercised by representatives of Member States. See Lenaerts (2011), p. 697.
- 21.
O.J. L 55/13 (2011).
- 22.
COM(2016)-92final. As observed by Bast (2012), “The so-called “regulatory procedure with scrutiny” pursuant to Article 5a of the old Decision (PRAC, the acronym based on the French name) remains applicable as long as references to this procedure in basic acts adopted before the Lisbon Treaty do exist. The PRAC was invented in 2006 in order to meet European Parliament’s demands for reform while the Constitutional Treaty was still pending and its entry into force uncertain. Although some differences still remained, the 2006 reform was largely guided by Article 290 TFEU since it gave the Parliament de facto a right to veto a draft implementing act where the basic act was subject to parliamentary co-decision. With the bulk of co-decision acts just recently adapted to the requirements of the 2006 reform, the institutions did not feel much pressure for a semi-automatic, en bloc alignment to the similar regime of Article 290 TFEU. As a result, for the time being a third class of habilitated acts of the Commission populates the Official Journal: acts adopted under the PRAC. They can easily be identified in that their title displays neither the adjective “delegated” nor “implementing.”
- 23.
The United States Environmental Protection Agency (EPA or sometimes USEPA) is an agency of the U.S. federal government that was created for the purpose of protecting human health and the environment by writing and enforcing regulations based on laws passed by Congress.
- 24.
VW Group, or VW as reported, includes a number of related entities: Volkswagen AG; Audi AG; Volkswagen Group of America, Inc.; Volkswagen Group of America Chattanooga Operations, LLC; Dr. Ing H. c. F. Porsche AG; and Porsche Cars North America, Inc.
- 25.
See more on https://cafee.wvu.edu/.
- 26.
The International Council on Clean Transportation is an independent nonprofit organization founded to provide first-rate, unbiased research and technical and scientific analysis to environmental regulators.
- 27.
The ICCT’s research contract to CAFEE was sparked by separate findings by the European Commission’s Joint Research Centre, which showed a discrepancy between test results and real-world performance in European diesel engines. See more on http://www.dailymail.co.uk/news/article-3245167/West-Virginia-engineer-proves-David-VWs-Goliath.html#ixzz4AFOSYWSI.
- 28.
The Jetta exceeded the US nitrogen-oxide emission standard by 15–35 times and the Passat by 5–20 times.
- 29.
- 30.
- 31.
- 32.
California Air Resource Board is an agency in the government of California, whose goals are attaining and maintaining healthy air quality, protecting the public from exposure to toxic air contaminants, and providing innovative approaches for complying with air pollution rules and regulations.
- 33.
- 34.
- 35.
- 36.
- 37.
- 38.
- 39.
Volkswagen, Defeat Devices, and the Clean Air Act: Frequently Asked Questions.
- 40.
- 41.
- 42.
- 43.
- 44.
- 45.
- 46.
- 47.
- 48.
The German carmaker agreed to devote as much as $10 billion to buy back affected models and compensate drivers. It will also pay $2.7 billion to federal and California regulators to fund pollution-reduction projects and give $2 billion to be invested in clean technology. Volkswagen also announced a $603 million settlement to resolve consumer and environmental claims with 44 U.S. states. The Volkswagen settlement would be one of the largest in corporate history, exceeded by the $246 billion agreement between the tobacco industry and US states in 1998 and the multiple payments to private parties and governments over the 2010 British Petroleum Plc oil spill. BP’s final bill is not yet known, but it includes agreements to pay more than $25 billion to the US and states and at least $12.9 billion for claims of private property and economic loss.
See more on http://www.bloomberg.com/news/articles/2016-06-28/volkswagen-to-pay-14-7-billion-to-settle-u-s-emissions-claims.
- 49.
- 50.
- 51.
- 52.
- 53.
- 54.
“Innovation, Emissions Policy, and Competitive Advantage in the Diffusion of European Diesel Automobiles”, Miravete EJ, Rincón MJM, Thurk J, August 2015. http://ftp.cepr.org/active/publications/discussion_papers/dp.php?dpno=10783.
- 55.
- 56.
- 57.
- 58.
- 59.
- 60.
- 61.
- 62.
- 63.
Joint Research Centre is the European Commission’s science and knowledge service which employs scientists to carry out research in order to provide independent scientific advice and support to EU policy.
- 64.
- 65.
- 66.
- 67.
- 68.
- 69.
Technical Committee for Motor Vehicles was set up by Article 40 paragraph 1 of Directive 2007/46/EC.
- 70.
To be noticed that the US norm for NO emissions is only 0.031 g/km, or rather 31 mg/km (EP source).
- 71.
The prohibition of deceptive software will be reaffirmed in whereas No. 5 of Regulation (EU) No. 2016/646: “‘Defeat devices’ as defined in Article 3(10) of Regulation (EC) No 715/2007 reducing the level of emission control are prohibited.”
- 72.
European Parliament resolution of 27 October 2015 on emission measurements in the automotive sector (2015/2865(RSP).
- 73.
Whereas M. of the resolution.
- 74.
Whereas N. of the resolution.
- 75.
See Summary Record 51st TCMV meeting, Brussels, 1 December 2015 GROW/C4 – CM.
- 76.
- 77.
- 78.
See in this book, for a complete analysis, Frigessi di Rattalma M, Chapter “European Union Law”, Sect. 2.
- 79.
Motion for a resolution (D042120/03 – 2015/2988(RPS)), document B80040/2016.
- 80.
Point F) of the resolution.
- 81.
Point 2 of the motion.
- 82.
The draft motion for a resolution from the Environment Committee was rejected by the EU Parliament by 323 votes to 317, with 61 abstentions. See http://www.europarl.europa.eu/news/en/news-room/20160129IPR11905/Parliament-decides-not-to-veto-car-emissions-test-update.
- 83.
- 84.
- 85.
- 86.
For a legal appraisal of these legal issues, see para 5.
- 87.
- 88.
See para 1 for a detailed analysis of the rules on type approval of vehicles.
- 89.
Report by EEA: ‘Explaining road transport emissions - A non-technical guide’, 24 May 2016.
- 90.
- 91.
TNO March report on ‘NOx emissions of Euro 5 and Euro 6 diesel passenger cars - test results in the lab and on the road’, 24 May 2016.
- 92.
Report by EEA: ‘Explaining road transport emissions - A non-technical guide’, 24 May 2016.
- 93.
- 94.
Report by EEA: ‘Explaining road transport emissions - A non-technical guide’, 24 May 2016.
- 95.
See the written reply to Question 5 of the EMIS Committee questionnaire provided by the Commission (DG GROW) prior to the hearing on 21 June 2016.
- 96.
Whereas No 15 of Regulation No. 715/2007.
- 97.
Decision (EU) 2016/34 of the European Parliament of 17 December 2015 on setting up a Committee of Inquiry into emission measurements in the automotive sector, its powers, numerical strength and term of office. More about the mentioned Decision in http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0462&language=en.
- 98.
European Parliament resolution of 27 October 2015 on emission measurements in the automotive sector (2015/2865(RSP)). See previous paragraph.
- 99.
Draft of interim report, 20 June 2016.
- 100.
http://www.eppgroup.eu/emis. A dedicated website for the EMIS Committee (http://www.europarl.europa.eu/committees/en/emis/home.html) has been set up since March 2016. Members and the public can find there all relevant information related to the work of the Committee.
- 101.
Among people questioned until now are Mr Vicente Franco, Researcher, International Council of Clean Transportation (ICCT); Ms Delilah Al-Khudhairy, Director, Joint Research Center (JRC); Mr Alois Krasenbrink, Head of the Sustainable Transport Unit, Joint Research Center (JRC); Mr Dirk Bosteels, Executive Director, Association of Emission Control by Catalyst (AECC); Mr Udo Lambrecht, Institut für Energie- und Umweltforschung Heidelberg (IFEU); Mr Richard Smokers, Principal Advisor, Sustainable Transport and Logistics, TNO; Mr Rob Cuelenaere, Senior consultant, Sustainable Transport and Logistics, TNO; Mr Paul Mc Aleavey, Head of Air and Climate Change Programme, European Environment Agency (EEA); Mr Martin Adams, Head of group ‘Air pollution, transport and noise’, European Environment Agency (EEA); Mr Pascoe Sabido and Mr Olivier Hoedeman, Corporate Europe Observatory (CEO); Prof. Dr-Ing. Kai Borgeest, Centre for car electronics and combustion engines, Aschaffenburg University of Applied Science; Mr Daniel Lange, Faster IT; Mr Reinhard Schulte-Braucks, Mr Philippe Jean, Ms Joanna Szychowska, Mr Gwenole Cozigou from DG GROW, European Commission; Mr Christoph Gauss, Head of Vehicle Test and Emission Lab, Allgemeiner Deutscher Automobil-Club (ADAC); Mr Nick Molden, Founder and CEO of Emissions Analytics; Mr Gaspar Gascon Abellan, Executive Vice President Engineering, Renault Group; Dr Ulrich Eichhorn, Chief Technology Officer, Volkswagen Group; Mr Paul Greening, Emission & Fuels Director, European Automobile Manufacturers’ Association (ACEA); Mr Stavros Dimas, Commissioner for the Environment from 2004 to 2010.
- 102.
According to Rule 198(7), the EMIS Committee may contact institutions or persons with a view to obtaining documents to carry out its inquiry.
- 103.
- 104.
EMIS questions to Commission TMCV TAAEG of 21 June 2016, question No. 6.
- 105.
Questionnaire to Volkswagen Group—written answers, on 14 July 2016.
- 106.
EMIS questions to Commission TMCV TAAEG of 21 June 2016, question No. 7.
- 107.
Questionnaire to Volkswagen Group on July 14, 2016.
- 108.
EMIS hearing of 20 June 2016 Questions to ADAC, question No. 1.
- 109.
Directive 98/69/EC of the European Parliament and of the Council, of 13 October 1998 relating to measures to be taken against air pollution by emissions from motor vehicles and amending Council Directive 70/220/EEC, Official Journal of the European Communities, L350, 28.12.1998, page 1.
- 110.
Questionnaire to the European Automobile Manufacturers’ Association (ACEA)—written answers on 14 July 2016.
- 111.
- 112.
Questionnaire to the European Automobile Manufacturers’ Association (ACEA)—written answers, on 14 July 2016.
- 113.
- 114.
Questions to Deutsche Umwelthilfe e.V. for the EMIS hearing on 16 June 2016.
- 115.
Questions to Deutsche Umwelthilfe e.V. for the EMIS hearing on 16 June 2016.
- 116.
Questions to Deutsche Umwelthilfe e.V. for the EMIS hearing on 16 June 2016.
- 117.
EMIS hearing of 24 May 2016: Questions to European Environment Agency (EEA).
- 118.
Questionnaire to the Joint Research Center (JRC) on 19 April 2016. Regulation (EC) No. 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information is described in para 1.
- 119.
Whereas No. 15 of Regulation (EC) No. 715/2007.
- 120.
Report by EEA: ‘Explaining road transport emissions - A non-technical guide’, 24 May 2016.
- 121.
TNO 2016 R10083 | Hearing of 9 March 2016 29/33.
- 122.
EMIS hearing of 24 May 2016, Questions to European Environment Agency (EEA).
- 123.
TNO March report on ‘NOx emissions of Euro 5 and Euro 6 diesel passenger cars - test results in the lab and on the road’, 24 May 2016.
- 124.
According to EEA, CO2 emissions tested with PEMS were also found to be higher (by 21 % on average) than laboratory tests for petrol and diesel cars. The magnitude of this discrepancy varies depending on vehicle type, operation mode, route characteristics, and ambient conditions.
- 125.
Report by EEA: ‘Explaining road transport emissions - A non-technical guide’, 24 May 2016.
- 126.
Commission Regulation (EU) No. 2016/427 of 10 March 2016 amending Regulation (EC) No. 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) and Commission Regulation (EC) No. 692/2008 of 18 July 2008 implementing and amending Regulation (EC) No. 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information are described in para. 1.
- 127.
Questionnaire to ADAC—responses on 20 June 2016. To be noted that, according to DUH, there is no need to include any conformity factor in the RDE procedure (Questionnaire to Ms Dorothee Saar, Deutsche Umwelthilfe (DUH)).
- 128.
Questionnaire to Ms Dorothee Saar, Deutsche Umwelthilfe (DUH), 16 June 2016.
- 129.
ADAC Position in the Current Discussion on Emissions Manipulations in VW Diesel Vehicles—Risks and Legal Consequences for Affected Car Owners.
- 130.
A draft intermediate report available in English was created on 2 June 2016, and a final interim report should be voted on 13–14th July 2016.
- 131.
There is no insertion of the word “delegated” or “implementing” in the title of Regulation (EU) No. 2016/646. See Lenaerts and Van Nuffel (2011), p. 695, note 35: it is observed that the definition of delegate acts at Article 290 TFEU is very similar to that of acts that under the Second Comitology Decision were subject to the regulatory procedure with scrutiny.
- 132.
See Lenaerts and Van Nuffel (2011), p. 693.
- 133.
- 134.
See Bast (2012), p. 890. Case C-16/88, Commission v. Council, [1989] ECR 3457, para 11; Case C-417/93 European Parliament v. Council, [1995] ECR I-1185, para 30.
- 135.
See Bast (2012), p. 890. Case C-46/86, Romkes v. Officier van Justitie for the District of Zwolle (1987) ECR 2671, para 16; Joined Cases C-6&7/88, Spain and France v. Commission, (1989) ECR 3639, para 15; Case C-133/06, Parliament v. Council (2008) ECR I-3189, paras. 54 et seq.
- 136.
See Lenaerts and Van Nuffel (2011), p. 693, citing C-25/70, Einfuhrstelle v. Koster, [1970] ECR p. 1161, paras 6 and 7.
- 137.
See T-398/07, Kingdom of Spain v. Commission (2012) ECR II-0000, para. 15.
- 138.
Case C-230/78, SpA Eridania-Zuccherifici nazionali (1979) ECR p. 2749, para. 8.
- 139.
Case C-100/74, CAM v. Commission (1975) ECR p. 1417, paras. 27–28.
- 140.
Case T-339/16, Ville de Paris v Commission. See Mairie de Paris, Communiqué de presse—Mercredi 11 mai 2016.
- 141.
Case C-263/09, Association belge des Consommateurs Test-Achats ASBL, [2011] ECR I-00773.
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di Rattalma, M.F., Perotti, G. (2017). European Union Law. In: Frigessi di Rattalma, M. (eds) The Dieselgate. Springer, Cham. https://doi.org/10.1007/978-3-319-48323-8_11
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