In the wake of the recent Volkswagen scandal, both the European Parliament and the European Commission have taken the bull by the horns in order to ensure that history does not repeat itself.
The EU’s watchdog is adamant that there should be full disclosure, zero tolerance and strict compliance by motor vehicle manufacturers with EU rules on pollutant emissions.
The protection of air quality has always been high on the EU’s agenda and in fact EU laws which make provision for emission standards for motor vehicles have been around for quite some time. The whole vehicle type-approval system in place in Europe ensures the technical harmonisation of motor vehicles circulating in all member states. Under this system, a car manufacturer can obtain certification for a vehicle type in one EU country and then market it EU-wide without the need for further tests.
Type approvals are subject to fully harmonised legal requirements defining the emission limits of motor vehicles as well as to implementing legislation defining the test procedures. The Euro Five and Six Regulation specifies emission limits for all important toxic pollutants which include nitrogen oxides.
EU law also specifically provides for the prohibition of so-called defeat devices. Any element of the design of a motor vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use, is considered as a defeat device.
The recent confession by Volkswagen that it used defeat device software in order to circumvent emissions standards for certain air pollutants has burst the European Commission’s bubble. The strict regulatory regime in place in Europe has been proven to be inefficient in ensuring the detection of irregularities by car manufacturers. In fact, the Commission is now actively seeking to enrol the assistance of national authorities in order to ascertain how widespread such phenomena are and whether there have been implications for vehicles certified and sold in Europe.
Real Driving Emission test procedures will complement the current laboratory-based testing and will assess the actual emission performance of vehicles on roads
New tests to ascertain the actual emissions by vehicles are also in the pipeline. In line with current EU laws, emissions are currently measured on a laboratory test cycle which does not reflect the emissions of vehicles in normal driving conditions. At present, nitrogen oxide emissions of diesel vehicles measured on the road may in reality substantially exceed the emissions measured on the regulatory test cycle.
In order to address this shortcoming, the Commission has been working to develop Real Driving Emission (RDE) test procedures. These procedures, which will come into force as from January 2016, will complement the current laboratory-based testing and will assess the actual emission performance of vehicles on roads. This means that the car will be driven outside and on a real road according to random acceleration and deceleration patterns. The pollutant emissions will be measured by portable emission measuring systems that will be attached to the car. It is envisaged that such a test will reduce the currently observed differences between emissions measured in the laboratory and those measured on road under real-world conditions as well as limit the risk of cheating with a defeat device.
In its initial stages, the portable emissions system will be used for monitoring purposes and it will have no implications on the conformity certificate issued by the national type-approval authority. However, the EU institutions are now also actively working to establish the regulatory not-to-exceed emission limits applicable in RDE testing. These limits define the acceptable small degree of deviation from the emission limit set in EU laws in order to take into account measurement uncertainties present in the on-road testing. The Commission aims to have the not-to-exceed emission limits applicable for all type approvals in autumn 2017 and for new vehicles in autumn 2018.
The quality of the air that we breathe ought to be of paramount importance for all and sundry. However, unfortunately, money talks and the temptation to lower costs by using fraudulent tactics in order to circumvent the regulatory regime is there to stay. It is, therefore, up to both the EU and national authorities to seek to improve such a regime not only in order to ensure that consumers are not cheated out of pocket but also to guarantee the quality of the air around us for current and future generations.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.