The Tragedy that is Ville de Paris

22 December 2021

Back in September 2015, the public were shocked to learn that Volkswagen cheated US emissions regulations. US agencies and departments moved swiftly to penalize VW and remedy the matter. Upon the Environmental Protection Agency publishing its findings, the US Department of Justice began prosecuting VW and the individuals involved. The fines levied on the company were historic. VW was apologetic, promising the publication of the Jones Day report and appeared remorseful before the House of Commons select Transport Committee.

Come 2016, VW's tone changed. No longer was it remorseful but adamant that it had done nothing wrong in selling similarly uncompliant vehicles to EEA+UK consumers. In fact, it blamed test cycle regulations and claimed there were exceptions, which would allow the manufacturer to program its vehicles to carry defeat devices. In coming years, it turned out that VW wasn't the only manufacturer which employed defeat devices in its vehicles. In fact, most major manufacturers were found to incorporate such devices in order to comply with typical emissions regulations. The EU emissions regulations were actually very generous when it came to NOx emissions with limits set multiple times higher than those in the US.

As legal challenges mounted in Europe, in a rather strange bid, using the already criticised comitology procedure, the EU's Commission adopted a Regulation without input from the European Parliament. This Regulation introduced "Real Driving Emissions" to the testing framework of Diesel vehicles being approved for driving on EEA+UK roads. This seems like a great idea. However, the Commission noted that the manufacturers needed time to "adjust" and introduced a "conformity factor" element to the regulations. The Commission set a conformity factor of 2.1 for Euro 6d-Temp vehicles, meaning that such vehicles would be tested in labs, then on the road, but would be allowed to emit 2.1 times the lab limit, which had not changed. Ségolène Royal—the then French Minister of Ecology, Sustainable Development and Energy—noted in a recent interview that she was against France's position on the matter but, because of a "trade-off" and the influence of the "automotive lobby", France supported the passing of this Regulation.

So how does the beautiful city of Paris play a role in all of this? Well, one of the consequences of emissions regulations not being enforced is that the NOx emissions in cities reach dangerous levels. The EU had set targets for NOx and other pollutants for cities to achieve. These limits were not being achieved, in part because of the lack of regulatory enforcement. In an era where judgments and rulings were coming to effect on the matter of defeat devices, the Commission, with haste, adopted a measure which allowed manufacturers to emit in excess of the emissions limits. Thus, the cities of Paris, Brussels and Madrid brought an Article 263 TFEU action for the annulment of the Commission's RDE regulation.

The General Court of the ECJ held that the Commission's RDE Regulation was in fact unlawful. It noted that the Commission had acted outside the scope of the prerogative afforded to it to amend aspects of the original Regulation. The court held that, by introducing conformity factors, the commission had engaged in the "de facto amendment of the limits on emissions of oxides of nitrogen laid down for the Euro 6 standard, contained in Annex I to Regulation No 715/2007…". The judgment is a rather interesting read and we would encourage you to take a look.

So, the court held that the Regulation was unlawful and that it should be annulled, right? Where is the tragedy? Well, the tragedy is that the court's ruling will have no practical significance. Principles of EU administrative law dictate that the annulment cannot take place retroactively, so manufacturers who had relied on the Regulation for the period before the judgment would still have those vehicles considered compliant. But what about annulment post-judgment? Well, to allow for adjustment and legal continuity, the court allowed the Regulation to remain valid for a further 12 months after the appeal period. So, what about after, then? Well, Article 60 of the Statute of the Court of Justice of the European Union provides that should there be an appeal, annulment is postponed and the 12 month period runs from the date of the appeal's dismissal. The Commission has actually appealed the ruling. The Regulation's conformity factor was said to have been temporal and set to come to an end in 2021. At the time of writing, the matter is pending appeal. The Advocate General has noted that he is in favour of dismissal of the appeal.

Thus, in effect, the Commission adopted a Regulation, which allowed for the disregard of public health consideration, in a manner which circumvented the democratic process, and when presented with legal challenges, fought them, lost and appealed the matter, so that the effect of its Regulation is maintained. This tarnishes the EU's insistence on its democratic mandate and respect for the environment and public health.