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Professor MarcoFrigessidiRattalmaAIDA WIENNovember2016
EuropeanUnionLaw Developments on Control of Polluting Emissions in the Aftermath oftheDieselgate.
The regime of European Union Law aimed at controlling polluting emissions
The regime of European Union law is aimed at controlling the volume of polluting emissions and focuses on technical harmonization in the context of the completion of the internal market, through acts based on Article 114 TFEU.This legislation provides for the establishment of maximum allowable emissions that each vehicle must respect and constitutes a specific aspect of the more general harmonized rules on type approval of motor vehicles.Therules on emissions were introduced at the level of EU law since 1970, under the pressure of scientific evidence of the considerable risks to humanhealthand the environment that involved the uncontrolled increase of emissions substances resulting from motortraffic.
The regime of European Union Law aimed at controlling polluting emissions
The emission standards were defined in a series of European Union directives staging the progressive introduction of increasingly stringent standards (so called Euro standards).Thesedirectives and further linked directives were repealed by Regulation (EC) No. 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from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 maintenanceinformation.Theregulation provides that the new standards Euro 5 and Euro 6 apply from September 1st 2009 and September 1st 2014 respectively.
Commission Regulation (EU) No. 2016/646 of 20 April 2016.
Thelegal act adopted at the EU level in the immediate aftermaths of theDieselgate: CommissionRegulation (EU) No. 2016/646 of 20 April2016.It amendsRegulation (EC) No. 692/2008 as regards emissions from light passenger and commercial vehicles (Euro6)Regulation(EU) 646 introduces a "temporary conformity factor" of 2.1 (equivalent to a rise of 110% of the current limit) to be applied forNOxin the new RDEtestingAsa result, thisRegulation shiftsthe current limit (under Regulation (EC) No. 715/2007)froma 80 mg/kmNOxfor each vehicle in circulation to a 168 mg/km limit by 2017.
Commission Regulation (EU) No. 2016/646 of 20 April 2016.
As this legal act is a Commission regulation subject to the regulatory procedure with scrutiny, the text was then submitted to the Council and the EuropeanParliamentOn 12thJanuary 2016 the Parliament Committee on the Environment, Public Health and Food Safety voted on a draft resolution condemning the package of measures taken by the European Commission, which, according to the resolution, “is empowered only to supplement Regulation (EC) No715/2007andnot to amend the emission limit values set out in Annex I to theregulation.”The Regulation would provide for ade factoblanket derogation from applicable emissions limits,andthereforebe notconsistent with Union law, in that itwouldnotbe compatiblewith the aim and content of Regulation (EC) No 715/2007
Reactions to CommissionRegulation (EU) No. 2016/646 of 20 April 2016.
However, the EU Parliament voted against the resolution to block the Commission regulation on 3rd February 2016, giving its green light to the package.TheCouncil decided not to oppose its adoption during its meeting on 12th February 2016 as a point withoutdiscussion.The Regulation is adopted.Complaints of theVille de Paris raised against Commission’s Regulation No. 646 of2016.The Ville de Paris lodged an action for annulment based on Article 263 TFEU and an action for damages pursuant to Articles 268 and 340,para2, TFEU at the Tribunal of the European Union to challenge the legality of Regulation (EU) 2016/646 which increases the permitted levels of nitrogen oxides emissions and to claim damages from the EU
Reactions to Commission Regulation (EU) No. 2016/646 of 20 April 2016.
According to the Ville de Paris the European Commission to adopt Regulation (EU) 2016/646 “has used a procedure usually reserved for the modification of the <<non-essential elements>> of European regulations in order to adopt this act of heavyconsequences.”Moreover the adopted regulation would violate the maximum thresholds of nitrogen oxides established by Regulation (EC) 715/2007 as well as Article 37 of the Charter of Fundamental Rights of the European Union providing for a high level of environmental protection.
Legalappraisal
Recital25of regulation 715/2007 “Inparticular, power should be conferred on the Commission to introduce particle number based limit values in Annex I, as well as to recalibrate the particulate mass based limit values set out in that Annex. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, they should be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC”Article 5 paragraph3 specifiesthat<<The specific procedures, tests and requirements for type approval set out in this paragraph, as well as requirements for the implementation of paragraph 2, which are designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 15(3). This shall include establishing the requirements relating to: (a) tailpipe emissions“.TheCommission was thus empowered by the basic act to establish the “requirements relating to: (a) tailpipe emissions” and to “recalibrate the particulate mass” and the “Mass of oxides of nitrogen (NOx)” as it has done by adopting Regulation (EU)2016/646.
Legalappraisal
Article37 of the Charter of Fundamental Rights of the European Unionaffirmsthat “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.Onecould argue that Regulation No. 2016/646, by increasing the emissions levels established by the basic regulation, is not coherent with the latter and thus runs against the achievement of the intended objective, i.e. the attainment of a high level of protection of the environment.
Legalappraisal
However one could argue that the recalibration introduced by Regulation 2016/646 is limited in time, which is made clear by the title of 2.1.2 “Temporary conformity factors”. Moreover the Commission undertakes at whereas 14 to “keep under annual review the appropriate level of the final conformity factor in light of technical progress”. These provisions could bring arguments in favor of the thesis that the recalibration of the emissions levels respects the principle of proportionality.Theargument could be made that since new measurement methodsof the emissions havebeen created, it would seem logical to introduce new parameters, considering the fact that the old measurements were ineffective and therefore would give erroneous results which were and are by now unattainable. Conformity factors of 2. 1 and 1.5 , i.e. a rise in RDE of no more than 110% and 50 % compared with the test bench, could be thus deemed acceptable. This would also ensure that carmakers equip their vehicles with emissions control technologies effectively lowering pollutant emissions under all operating conditions, in accordance with the technological and automotive development.
TheEUCommitteeof inquiry into Emissions Measurements in the Automotive Sector (EMIS)
TheEU committee of inquiry into Emissions Measurements in the Automotive Sector (EMIS)TheVW scandal has thus highlighted not only the question of the handling system (so called defeat device), but also the problem regarding the reliability of the old laboratory tests: following the revelations last year that the Volkswagen Group had dodged theNOxemissions limit for diesel cars, the European Parliament decided on 17th December 2015 to set up a Committee of Inquiry for Emission Measurements in the Automotive Sector (EMIS), composed of 45 members, to investigate alleged contraventions and maladministration in the application of Union law in relation to emission, measurements in the automotive sector
The EU committee of inquiry into Emissions Measurements in the Automotive Sector (EMIS)
Committee of Inquiry's main tasks are to:- investigate the alleged failure of the Commission to comply with the obligation imposed by Article 14(3) of Regulation (EC) No. 715/2007 to keep under review the test cycles used to measure emissions and to adapt them, if they are no longer adequate or no longer reflect real world emissions;- investigate the alleged failure of the Commission and the Member States' authorities to take proper and effective action to oversee the enforcement of, and to enforce the explicit ban on defeat devices, as provided for in Article 5(2) of Regulation (EC) No. 715/2007;- investigate the alleged failure of the Commission to introduce tests reflecting real-world driving conditions in a timely manner and to adopt measures addressing the use of defeat mechanisms, as provided for in Article 5(3) of Regulation (EC) No. 715/2007;- investigate the alleged failure of Member States to lay down provisions on effective, proportionate and dissuasive penalties applicable to manufacturers for infringements of the provisions of Regulation (EC) No. 715/2007, including the use of defeat devices.
The EU committee of inquiry into Emissions Measurements in the Automotive Sector (EMIS)
On 2nd March 2016 the Parliament elected Kathleen vanBremptas President of the committee and four Vice-Presidents of the organism that will have a term of one year. According to point 3 of the Decision, the committee shall present an interim report within 6 months of starting its work and shall submit its final report within 12 months of starting itsworkThrough its hearings, EMIS committee has collected the testimonies of people informed about the facts not only from a technical but also institutional and political point ofviewRegardingthe issue of the manipulative software used by Volkswagen, no hearing has been able until now to give precise indications about who knew and when.

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