The EU is at a critical moment in the battle of car emission and air pollution regulation. Diesel car emissions are much higher in real driving conditions rather than in the laboratory tests and both EU Member States and the Commission are responsible for the poor enforcement of the previous legislation. Therefore they should collaborate to improve tests and checks on new cars on EU roads.
Controlling car emissions and protecting the quality of our air is a complex task that concerns different pieces of legislation. Understanding them is important to uncover what went wrong and how to change it.
A SYSTEM TO REFORM: PREVIOUS LEGISLATION
While the technology is running pretty fast, the policy-maker struggles to keep up with these changes. This is illustrated by the fact that we are still stuck on a legislation 10 over years old. Firstly we have to make it clear that we are going to consider two different laws of 2007: the first one is a Directive which provides information about the vehicle testing system and so determines who is in charge of certifying that cars meet all the requirements; the second one is a Regulation setting what car emissions’ limits provided by Euro 5 and Euro 6. The main difference between a Directive and a Regulation is that the former set out just the main pillars of a matter leaving to the Member States the task of implementing them, whereas the latter sets out a detailed proposal.
As revealed by Julia Poliscanova (T&E) in February 2017, today’s vehicle testing system in Europe refer to an outdated piece of paper, a bygone legislation anymore. The Directive provides a common legal framework for the type approval of cars, vans, trucks, buses and coaches. Vehicle type approval is the confirmation that a car meets a minimum set of regulatory, technical and safety requirements including the compliance with emissions’ standards and the type approval system that it is provided by the Directive of 2007 and that relies on the cooperation of 28 national authorities. They have to certify that cars meet all of the requirements before they are sold and used on the roads. Considering the ensuing Dieselgate, the legislation has obviously some weakness: national authorities are the only ones in charge of certifying that a vehicle complies with all requirements before being placed on the market and of checking cars manufacturers’ compliance with EU law.
Perhaps what is most controversial part of the Directive of 2007 is the duty for the Member States to determine the penalties applicable for infringement of the provisions of law. No EU institution is responsible for applying penalties and punishing infringements, a critical point of the ongoing Dieselgate scandal. This legislation could not guarantee an independent and harmonized system, free from political and lobbying influences, duly applied in all Member States. A problem especially because at stake is the lives of the citizens you included.
The above-mentioned Euro 5 and 6 Regulation of 2007 concerns, instead, vehicle emissions’ limits and requires cars to keep NOx emissions below 80mg/km in the real world.
The Regulation of 2007 has been infringed by Member States because of the inadequacy of the Directive of 2007. On one hand, the test procedure was totally inadequate, on the other even the inspection system was inefficient and it still is today. Indeed car-makers can choose any of the 28 authorities to get their car approved and then sell it throughout the European Union. “Obviously they will choose one of their own countries, who don’t have interest to damage his own industries. The tests are often done in car makers’ own labs under the supervision of technical services which work thanks to fees paid by the same car makers! So even they have no interest in being strict, because that would mean loose a potential customer” says Ugo Taddei ,Client Earth environmental lawyer.
According to Julia Poliscanova ,Clean Vehicles Manager at Transport & Environment (T&E), the enforcement of the rules is left entirely to the Member States, with neither the Commission nor non-type approving authorities having any powers to order recalls or remedy action from car makers.
Can we afford to leave such an important matter to the Member States, considering the political pressures that they are facing and the nature of the problem itself? We do not think so and we call for more accountability at all levels.
FROM BAD TO WORSE: A CONTROVERSIAL WAY OF LAWMAKING
Now the question arises: what changed after the Dieselgate scandal? What were the reactions of the public institutions? At the beginning it felt like there had been an immediate reaction. The European Commission in 2016, one year after the scandal, drew up a proposal to change the emissions tests designing new on-the-road tests or ‘Real Driving Emissions’, RDE tests: no more test in the laboratory, unable to register the actual emissions, but on the road. But maybe it would be better not to jump to conclusions. Let’s analyse this in depth.
As the environmental lawyer with ClientEarth Ugo Taddei explained it’s inconceivable that any updating of the existing EU legislation happens through the ordinary legislative procedure. This is because it’s a matter of adjusting some technical aspects; it’s faster to refer to government experts, in this case the EU Commission. The European Commission is indeed able to adopt delegated acts in order to update the emissions tests on the basis of technical developments and for this purpose asked for a technical expertise, the Joint Research Center – JRC -, which was in charge to calculate the so-called “conformity factor”. It’s important to know in this respect that tests on the road compared to the ones in the laboratory always have a margin of uncertainty, considering that they are made under unpredictable conditions. So the Commission could introduce a new procedure just on the basis of the technical developments that are better than those set by the Parliament in 2007.
Through this technical expertise, the EU Commission found out that the margin of error could be equal to 1.2, that means a 20% higher or lower than the emissions limit in the laboratory. So in order to draft the new legislation, the EU Commission should have considered just this parameter.
The problem was that the EU Commission proposal regarding the new tests needed the support of governments’ representatives committee to be approved and they were able to introduce a much higher margin of error, equal to 2.1 from 2017, that means 110% higher than the one that the Parliament set in 2007 and not justified by any technical advice, and 1.5 from 2020, “to allow manufacturers to gradually adapt to the RDE – Real driving emissions testing – rules”; that was the justification written in the Commission Regulation of April 2016. Is it justified from a more technical perspective? Here is the reason why we can raise doubt about the neutrality of this affirmation, considering that the industry has played an important role in defining such a political – not technical let’s remember- affirmation. Let’s see how all this came about…
The procedure that the Commission has followed, known as “comitology” is highly opaque. It concerns a consultation between the European Commission and technical committees composed of representatives of the Governments. The comitology process about emissions tests has been carried through under the guidance of the Technical Committee on Motor Vehicle, which gathers Member States representatives. It is known for being a very controversial procedure, considering the over-representation of lobbies and absence of transparency.
“Comitology is a way of lawmaking where the European Parliament has no other option than approving or vetoing a bill” says Peter Teffer, journalist who works for the EU observer. He also adds that even if it doesn’t seem like a democratic way of lawmaking, it is a popular way in Brussels of drafting technical legislation. With the theoretical advantage that it can move much quicker than during the normal procedure, which requires the Parliament to come to a compromise with Member States. In which case MEPs are excluded from this legislative process making dubious the democratic legitimacy of that. The problem arises when the choices step outside the technical boundaries granted by EU law. No political choice should pass through such an undemocratic process, with no legitimacy to do so. An analysis carried out by Client Earth took charge of dealing with this issue, proving how the parliament should have vetoed such a decision. Again, no action was taken by the parliament and today we are still living with such an unjustified conformity factor, causing irreparable damage at many level: our health first.
So as it often happens, at the beginning of a huge scandal like the Dieselgate an attempt is being made to find a quick solution and give a blatant answer.
THE NEW PROPOSAL
January 2016 a new proposal has been drafted by the European Commission on the so-called EU type approval framework. The new proposal will increase surveillance of cars already in circulation and vehicle testing. Greater European oversight will strengthen the system as a whole. It aims at revising the legal framework for the type-approval of motor vehicles and their trailers, currently set out in the Directive 2007/46/EC of the European Parliament and of the Council (the ‘Framework Directive’).
But what’s the good word from the halls of the European Institutions? One of the main pillars of the new proposal is reinforcing independence and the quality of testing that allows a car to be placed on the market. The Commission proposes to modify the remuneration system to avoid financial links between technical services and manufacturers, which could lead to conflicts of interest and compromise the independence of testing. We all know that when inspectors and the inspected collaborate danger is around the corner. The proposal also foresees a more stringent performance criteria for these technical services, which should be regularly and independently audited to obtain and maintain their designation. National type approval authorities will be subject to peer reviews to ensure that the relevant rules are implemented and enforced rigorously across the EU.
The new proposal already allows room for a debate. According to Julia Poliscanova, Clean Vehicles Manager at Transport & Environment ( T&E ), the peer reviews system is an ineffective system because you require countries who are often in competition to defend their industries to do reviews each other and find problems in one another, which is open to political deal making and is not independent.
Poliscanova believes that what should be put on the table is a genuine and independent review system, independent audits of national regulators, where the commission would commission independent experts that would all go and check the authorities on an equal footing. The future European type approval reform should include the following elements: it should have a strong European oversight in the view of European agency checking the cars and checking the work of national regulators; it should also have an online public database where we have all of the testing information so you could have genuine compliance verification and other people put in their complaints in to know what’s happening. It should also have adequate funding for the system because if you don’t have money nothing will actually happen.
“So we advocate for a small surcharge on each new car sold for example €10 which manufacturers will then pay into a common fund and it means nothing for a car owner when you pay extra €10 when you buy a car but it can leverage millions and millions of Euros to then be used for proper independent checks. Only then will have a rigorous transparent and independence systems so badly need in Europe to make sure that consumers get a fair deal and the air is clean again” she concludes firmly.
Another addition is the introduction of an effective market surveillance system to control the conformity of cars already in circulation: while the current rules deal mainly with ex-ante controls, in the future Member States and the Commission will carry out spot-checks on vehicles already on the market. This will make it possible to detect non-compliance at an early stage, and ensure that immediate and robust remedial action is taken against vehicles that are found to be non-compliant and/or present a serious safety risk or harm to the environment. All Member States should be able to take safeguard measures against non-compliant vehicles on their territory without waiting for the authority that issued the type approval to take action.
Lastly, it is essential to reinforcing the type approval system with greater European oversight. The Commission will have the power to suspend, restrict or withdraw the designation of technical services that are under performing and too lax in applying the rules. In the future the Commission will be able to carry out ex-post verification testing through its Joint Research Centre; if needed, initiate recalls. By allowing the Commission to impose financial penalties, the proposal will deter manufacturers and technical services from allowing non-compliant vehicles into the market. Chris Carroll, member of the Bureau Européen des Unions de Consommateurs – BEUC – expresses his concern about Member States behavior relative to the new proposal: “One of the big major points of the commission’s proposal, in essence, is that it will provide the European Commission with more power. Today there’s very little oversight in terms of auditing Member States on how they apply rules, with no possibility for the Commission to put in place fines and there’s no opportunity for the European Commission to test cars. But several Member States don’t particularly like the idea that the European Institution can have power of control on their car manufacturers. Car manufacturer actually don’t want to be tested”.
The new proposal looks constructive to our eyes because it finally takes into account the interest of the citizens and a more transparent system, it’s all about estimating the gap between words and action.