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Harmonizing Car Emissions, Air Quality, and Fuel Quality Standards in the Wake of the VW Scandal

How to Square the Circle?

Published online by Cambridge University Press:  20 January 2017

Nicolas de Sadeleer
Nicolas de Sadeleer*
Affiliation:
Saint-Louis University, Brussels
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Extract

Given that cars have become icons for flexibility, individuality, and freedom, it comes as no surprise that the passenger car fleet in almost all of the EU Member States is constantly growing. In 2010 there were about 239 million heavy-duty vehicles and 35 million light-duty vehicles in the then 27 Member States, more than a quarter of the cars and trucks on the road worldwide. It is expected that this number will grow by 31%by 2030. Not only has the number of vehicles grown constantly over recent decades, but the distance travelled by each has increased as well. Cars, and the industries producing them, do however have significant impacts on the environment ranging from smog to climate change.

Type
Mini-Symposium on the VW Scandal
Information
European Journal of Risk Regulation , Volume 7 , Issue 1 , March 2016 , pp. 11 - 24
Copyright
Copyright © Cambridge University Press 2016

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References

1 Ashford, N.A. and Caldart, C.C., Environmental Law, Politics, and Economics (Cambridge: MIT Press, 2008) p. 462 Google Scholar.

2 The International Council on Clean Transportation (ICCT), European Vehicle Market Statistics, 2013, p. 6 Google Scholar.

3 Attention should be drawn to the fact that light-duty vehicles – cars and vans – produce around 15% of the EU's emissions of CO2. These emissions are regulated by Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO2 emissions from light-duty vehicles, OJ L 140, p. 1.

4 Case C-370/07 Commission v Council [2009] ECR I-8917, paras. 37, 39, 46, and 48. It must be noted that AG Kokott stressed in addition to these obligations the principle of transparency (paras. 37 and 38).

5 Article 5(1) TEU provides that ‘The limits of Union competence are governed by the principle of conferral’. Accordingly, competence is conferred on the EU by a swathe of Treaty provisions in order to achieve objectives particular to those provisions, read in the light of the general objectives of the EU. As a result, the legal base occupies centre stage inasmuch as it identifies the competence under which EU institutions act.

6 Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles, OJ L 161/12.

7 de Sadeleer, N., EU Environmental Law and the Internal Market (Oxford: OUP, 2014) pp. 349–382 Google Scholar; Maletic, I., The Law and Policy of Harmonisation in Europe's Internal Market (Chelttenham: E. Elgar, 2013) pp. 94–105 CrossRefGoogle Scholar.

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15 Given the absence of harmonization of eco-taxes, Member States have significant freedom to carry out their environmental tax policies with a view to encouraging the best environmental standards. Taxation on second-hand vehicles compatible with Euro standards has been giving rise to litigation. See N. de Sadeleer, EU Environmental Law and the Internal Market, supra note 7, pp. 237-259. Regarding the compatibility of a pollution tax levied on first registration of second-hand vehicles compatible with Euro 3 and Euro 4 air pollution standards is consistent with Article 110 TFEU, see Case C-254/13 Orgacom BVBA [2014] C:2014:2251. Whether a Rumanian environmental tax levied on first registration of motor of second-hand vehicle compatible with Euro 2 air pollution standards is discriminatory, see Case C-263/10 Iulian Nisipeanu v Direcţia Generală a Finanţelor Publice Gorj and Others [2011] C:2011:466.

16 N.A. Ashford and C.C. Caldart, supra note 1, p. 472.

17 The specific technical provisions necessary to implement that regulation were adopted by Commission Regulation (EC) No 692/2008.

18 The International Council on Clean Transportation, European Vehicle Market Statistics 2013, p. 6.

19 N. de Sadeleer, EU Environmental Law and the Internal Market, supra note 7, pp. 199-202.

20 ACEA – European Automobile Manufacturers’ Association; JAMA – Japanese Automobile Manufacturers’ Association, and KAMA – Korean Automobile Manufacturers’ Association.

21 See Communication from the Commission, Results of the review of the EU Strategy to reduce CO2 emissions from passenger cars and light-commercial vehicles, COM (2007) 19 final. E.g. Krämer, L., EC Environmental Law, 6th ed. (London: Sweet & Maxwell, 2007), p. 316 Google Scholar.

22 Given that the car industry was unable to reach its own objectives as set out in these three agreements, in February 2007 the Commission acknowledged the need to replace this conciliatory approach with a genuine regulatory approach. As a result, the Commission proposed the Council and the European Parliament to adopt a regulation setting emission performance standards for new passenger cars as part of the EU's integrated approach to reduce CO2 emissions from light-duty vehicles. See Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars [2009] OJ L 140/1–15.

23 N. de Sadeleer, EU Environmental Law and the Internal Market, supra note 7, pp. 211-212.

24 The articulation between the two techniques is somewhat haphazard. In Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [2011] C:2011:348, the Court looked into the question of the interpretation of IPPC Directive 2008/1, which establishes the principles that govern the procedures and conditions for granting permits for the construction and operation of large industrial installations, and of Directive 2001/81, which introduces a system of national emission ceilings for certain pollutants (SO2 and NOx). The Court held that, when granting an environmental permit for the construction and operation of an industrial installation, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81.

25 In the course of the 90s, under the Auto/Oil I programme, the European Commission set up working groups where the representatives of European car associations and petrol industries were invited to share their expertise. NGOs did not take part in these groups. In contrast, different stakeholders among which environmental NGOs took part in the Auto/Oil II programme. See L. Krämer, EC Environmental Law, above, pp. 315-316.

26 S. Bell, D. McGillivray, O. Pedersen, supra note 11, p. 245.

27 L. Krämer, EC Environmental Law, supra note 21, p. 316.

28 Preamble, para. 4 Commission Regulation amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6).

29 A product standard is defined by ISO as ‘a document that provides requirements, specifications, guidelines or characteristics that can be used consistently to ensure that products, … are fit for their purpose’.

30 OJ 1998 L 350, p. 58.

31 Article 1. Directive 98/70/EC was amended by Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 with the aim of dealing with the marketing of diesel fuels with a higher biofuel content.

32 Article 3(1).

33 Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEE, OJ L 140, pp. 88–113.

34 Article 4.

35 Case C-251/14, György Balázs [2015] C:2015:687, para. 44.

36 Case T-182/06 Netherlands v Commission [2007] ECR I-1983.

37 Article 1(6) of Directive 2010/75/EU of the European Parliament and the Council of 24 November 2010 on industrial emissions, OJ L 344, p. 17.

38 Directive 2004/107/EC of the European Parliament and of the Council relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air.

39 Article 23(1).

40 EEA, Air quality in Europe —2013 Report.

41 Report of the European Commission, Improving Air Pollution, 2013.

42 EEA, Air quality in Europe — 2015 report, 5/2015, p. 8.

43 Case C-404/13 ClientEarth [2014] C:2014:2382.

44 ClientEarth v Secretary of State for the Environment, Food and Rural Affairs, 29 April 2015.

45 S. Bell, D. McGillivray, O. Pedersen, supra note 11, p. 244.

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48 S. Bell, D. McGillivray, O. Pedersen, supra note 11, p. 244.

49 Ibid., p. 244.

50 Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), OJ L 263, p. 1.

51 L. Krämer, personal communication.

52 International Council for Clean Transportation (ICTT), European Vehicle Market Statistics 2013, p. 11.

53 International Council for Clean Transportation (ICTT), Assessment of PEMS Datasets from Modern Diesel Passenger Cars, 20th International Transport and Air Conference, 2014.

54 Article 13 of Regulation (EC) No 715/2007.

55 The Commission has performed a detailed analysis of the procedures, tests and requirements for type approval that are set out in Regulation (EC) No 692/2008 on the basis of own research and external information and found that emissions generated by real driving on the road of Euro 5/6 vehicles substantially exceed the emissions measured on the regulatory New European Driving Cycle (NEDC), in particular with respect to NOx emissions of diesel vehicles. See Recital 3, Preamble of the Commission Regulation amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6).

56 Transport & Environment, Realistic real-world driving emission tests: the last chance for diesel cars?, July 2015.

57 Recital 6, Preamble.

58 European Commission - Press Release, ‘Commission welcomes Member States’ agreement on robust testing of air pollution emissions by cars’, Brussels, 28 October 2015.

59 The European Parliament and the Council has the right of scrutiny that enables it to pass a resolution if the institution believes that the proposed measure exceeds the implementing powers provided for in the basic act. the “Comitology” Regulation No. 182/2011 on 16 February 2011 did not have the effect of abrogating the RPS introduced by Council Decision 2006/512/EC. Although Regulation No. 182/2011 introduced considerable changes to existing comitology mechanisms, nonetheless the RPS ‘shall be maintained for the purposes of existing basic acts making reference thereto’. See Regulation (EU) 182/2011, Article 12(2) and Recital No 21.

60 N. de Sadeleer, ‘Dieselgate. Quand l'enfer est pavé de bonnes intentions’, L’Echo, 25th November 2015, p. 12; A. Gurzu, ‘Parliament fails to overturn weak emissions tests’ Politico, 4 February 2016, p. 14.

61 P. Nicolaides and M. Geilmann, ‘What is Effective Implementation of EU Law?’ (2012) 19: 3 MJ 383-399.

62 Article 13 (2) b.

63 Article 5 (2). Regarding the definition of defeat device, see Article 1(3).

64 § 7522(a) (1) Clean Air Act.

65 L. Krämer, personal communication.

66 See, inter alia, C-259/12 Rodopi-M 91 [2013] EU:C:2013:414, para. 38; Case C-487/14, SC Total Waste Recycling SRL [2015] C:2015:780, para. 53.

67 Case C-487/14 SC Total Waste Recycling SRL [2015] C:2015:780, para. 55.

68 European Environment Agency, Air quality in Europe — 2015 report, 5/2015, p. 7.

69 Ibid., p. 9.

70 L. Krämer, EC Environmental Law, supra note 21, p. 317.

71 International Council for Clean Transportation, European Vehicle Market Statistics 2013, p. 6.

72 Sobotta, C., ‘Compliance with European Environmental Law – Deficiencies and Approaches’ JEEPL 9(1) (2012), p. 93 Google Scholar.