Dr. Benedikt Wolfers, M.A. & Sebastian Lutz-Bachmann, LL.M.*
* Partners of the Law Firm Posser Spieth
Wolfers & Partners in Berlin.
Photo credit: Reinhold
Möller, via Wikimedia
Commons
In recent years, the Court of Justice
decided a series of cases in relation to vehicle type approval law. On 21 November
2024, Advocate General Rantos published his Opinion
in two further cases (joint cases C-251/23, C-308/23 Mercedes-Benz). A regulatory
key question in these cases is whether EU5 and EU6 vehicles registered in the
EU that comply with the emission limits on the legally required chassis
dynamometer test in the New European Driving Cycle (NEDC) also have to comply
with these emission limits in real driving conditions outside the NEDC. For NEDC
vehicles the more recent Real Driving Emissions (RDE) test, that has been introduced
as of 1.9.2017, is not applicable.
In his Opinion, Advocate General Rantos nevertheless
considers NEDC emission limits to be applicable in real driving conditions: In
his view, NEDC vehicles “must simultaneously comply with all of the limits values
set out in Annex I to Regulation No 715/2007, both in the NEDC test and in real
driving conditions” (para. 61). He states “that compliance with the NOx
emission limit values must be verified not only in the context of the NEDC test
but also under real driving conditions, in normal use” (para. 47). This
general, far reaching statement on Art. 4(2) and Art. 5(1) of Regulation
(EC) No 715/2007 (on type approval of motor vehicles) is the basis to
answer the initial question put the court: whether a NEDC vehicle has to meet
the emission limit values in the NEDC test not only after a cold start (as
Annex I to Regulation (EC) No. 715/2007 requires) but also after a warm start
(as Annex I does not require). Advocate General Rantos confirms this and
justifies his position with his general statement, “in so far as driving with a
warm engine constitutes normal use […] in real driving conditions, as they are
usually present in the territory of the European Union” (paras. 47, 92).
Since the Advocate General interprets the
scope of Art. 4(2) and Art. 5(1) of Regulation (EC) No 715/2007 generally his view
applies to all EU5 and EU6 NEDC light passenger and commercial vehicles (be
extended to EU4 ), with a diesel or petrol engine, and is relevant for all courts
and EU type approval and market surveillance authorities who prove compliance
of NEDC vehicles with the EU emissions regulation - far beyond the individual
case at hand.
Should Advocate General Rantos’ view
prevail, holders of NEDC vehicles would have to meet retroactively the additional
requirement to meet the emission limits in real driving conditions which did
not exist at the time of the type approval and marketing of the vehicles. Holders
will not able to not do so - because NEDC vehicles are no RDE vehicles and can
typically not meet the NEDC limits in real driving conditions. This means that
up to 200 Mio of EU citizens, tradespeople, service providers, etc. in the EU
could be exposed to the risk that their NEDC vehicles, which did comply with
the statutory test when approved, would today, retroactively, be considered illegal.
This could lead to massive damage claims and recall of vehicles, imposing an
unbelievably high burden on customers and the EU industry.
Advocate General Rantos’ opinion is not
only very dangerous but also, legally, erroneous. It infringes the legal and
factual status of the last 20 years as well as the fundamental legal principle
that measures should have no retroactive effects. For more than 20 years, EU
law has provided that the limit values for NEDC vehicles are tested in the NEDC
test only, not in real driving conditions. For more than 20 years, the EU
Commission, all EU member states, all vehicle approval authorities, scientists,
courts, manufacturers, importers and consumers have applied the limit values
for NEDC vehicles exclusively to the NEDC on the test bench, but not to normal
use in real driving conditions. To comply with the law and to avoid massive
risks for consumers and the industry in the EU the Court of Justice should not
follow Advocate General Rantos’ proposal.
European type approval law does not provide
for the application of NEDC emission limits in real drive conditions
Advocate General Rantos argues that the application
of NEDC emission limits in real drive conditions would result from the existing
case law of the Court of Justice on diesel vehicles (esp. from the decision in
Case C-134/20 Volkswagen).
However, in these cases the Court of Justice only decided on the interpretation
of “normal driving conditions” in the context of defeat devices and did not
decide that NEDC emission limits have to be met in real drive conditions. This
is not the same. The definition and prohibition of a defeat device (in Art.
3(10) and Art. 5(2) of Regulation (EC) No 715/2007) is strictly to be
distinguished from the question whether emission limits specified in Annex I to
Regulation (EC) No. 715/2007 have to be met in real driving situations.
In that regard, European type approval law,
to which Advocate General Rantos refers in his Opinion, does not provide for
the application of NEDC emission limits in real drive conditions. Rather, Regulation
(EC) No. 715/2007 and Regulation (EC) No. 692/2008, which form together the
core of emission-related type approval law for vehicles in the European Union, clearly
establish that compliance with the relevant emission limits is only required
during the specified NEDC test procedures:
Emission limits for EU5 and EU6 are
specified in Annex I to Regulation (EC) No. 715/2007. For passenger and light
duty diesel vehicles NOx limits are 180mg/km (EU5) and 80mg/km (EU6)
respectively. Art. 4(1) sub 2 Regulation (EC) No. 715/2007 obliges
manufacturers to comply with the emission limit values set out in Annex I. The
reference to meet the limits is immediately followed by a reference to the
implementing measures. According to these implementing measures, which are set
out in Regulation (EC) No. 692/2008, the emission limits must only be met under
test procedures specified in the detailed annexes to Regulation (EC) No.
692/2008 (Art. 3 para 6 Regulation (EC) No. 692/2008). These test procedures most
notably include the NEDC test procedures. Until 2017 the test procedures set
out in the annexes to Regulation (EC) No. 692/2008 did not, however, refer to
any testing under real driving conditions. Therefore, until 2017 all
type-approved vehicles had to comply with the emission limit values set out in
Annex I to Regulation (EC) No. 715/2007 only in the prescribed test procedures
on the dynamometer.
Only for vehicles that have been
type-approved since 1.9.2017 new test procedures that include normal use under
specified real driving conditions on the road have been introduced. However,
these RDE tests are not retroactively applicable for vehicles type-approved
according to the NEDC before 2017.
Tests for NEDC vehicles under real drive
conditions would not have been possible
An interpretation of the law which requires
the impossible demonstrates that it is incorrect. This applies to Advocate
General Rantos’ view that NEDC vehicles should meet the emission limits in real
driving conditions: No type approval authority, no technical service and no
manufacturer could have implemented this – for two reasons:
First, until 2017 EU law did not provide
for any procedure to test emission limits of EU4, EU5 and EU6 NEDC passenger
cars and light duty vehicles in real driving conditions. Each emission limit,
however, requires a description of the test procedure with which it is to be
tested. This is a scientific-technical law and logically mandatory. Every
material test and every technical limit requires a description of the procedure
in which it is tested. However, a procedure for testing emissions from
passenger cars and light duty vehicles in real driving conditions was only
introduced in EU law for new vehicle types as of 1.9.2017 (introduction of RDE
tests). Without a legally recognized test procedure, type approval authorities
could not have tested NEDC vehicles in real driving conditions.
Second, until 2017 it would not have been
technically possible to test the emissions of passenger cars and light duty
vehicles in real driving conditions. So-called PEMS devices, which have been
used to carry out the RDE test of passenger cars and light duty vehicles since
2017, were not available when EU4 and EU5 were introduced in 2005 and 2009
respectively. The first recognition of PEMS devices as a measurement technology
under EU law was for heavy duty vehicles in 2011 which was not applicable for passenger
cars and light duty vehicles (Art. 2 No. 12 and Annex II Appendix 1 of
Commission Regulation 582/2011 of 25 May 2011 on Heavy Duty Vehicles
Emissions). For NEDC passenger cars and light duty vehicles, PEMS measurement
technology for real driving conditions was only created and recognised in EU
law with the introduction of RDE tests for new vehicle types as of 1.9.2017.
Without a legally recognized PEMS test equipment, type approval authorities
could not have tested NEDC vehicles in real driving conditions.
Advocate General Rantos’ opinion
contradicts with practice of European Commission, Member States and all type
approval authorities for more than 20 years
The incorrectness of Advocate General Rantos’
view is confirmed by the practice of the European Commission, EU Member States,
vehicle approval authorities, scientists and courts, which for more than 20
years, as numerous documents show, have applied the EU4, EU5 and EU6 emission
limits for NEDC vehicles only in the NEDC and not under normal use in real
driving conditions.
Because the NEDC was criticised for not
being representative for real driving conditions it was replaced at EU level in
2017 for new vehicle types by a new test procedure which provides for a more
demanding driving profile on the chassis dynamometer (WLTP) and additionally
and for the first time by a test under normal use under specified real driving
conditions on the road (RDE test). This new legislation and its historical
background confirm that before the change of law in 2017 the emission limits of
NEDC vehicles had to tested in the NEDC only. This is also the view of the European
Commission which in 2019 explicitly stated that “the mandatory NOx emission
limits for diesel cars in the EU have been progressively lowered from 500 mg/km
at Euro 3 […] to 80 mg/km at Euro 6. However, there is evidence that despite
these increasingly stringent NOx limits, that are verified under laboratory
conditions and on a standardised test cycle, the actual NOx emissions under
real driving conditions did not come down to the same extent (Weiss et al.
2011). In response to this, the Commission has developed the real driving
emissions procedure (RDE). […] It first applied for monitoring purposes from
early 2016 to complement the laboratory test and has been applicable to new
vehicle types as from 1 September 2017” (see: Proposal by EU Commission for a
Regulation amending Regulation 2007/715; COM(2019)
208 final).
Conclusion: Court of Justice should not
follow Advocate General’s Opinion
Retroactively expanding the scope of
emission limits for NEDC vehicles on real driving conditions would undermine
the trust in the harmonized European type-approval law and in the internal
market which for more than 20 years has provided that the emission limit values
for NEDC vehicles are tested in the NEDC only, not in real driving conditions.
Up to 200 Mio of EU citizens, tradespeople, service providers, etc. in the EU
could be exposed to the risk that their NEDC vehicles, which did comply with
the statutory test when approved, would today, retroactively, be considered
illegal. Such an important decision falls outside of the competence of the
Court of Justice and would rather have to be adopted by a legislative act (Art.
289(3) TFEU). However, such a legal act, that would retroactively impose
additional duties (and potentially sanction), would not fulfil the requirements
established by the Court of Justice under which such a retroactive application
is exceptionally permissible (Case 98/78, ECR 1979, 69, para. 20 (Racke); Case
84/81, ECR 1982, 1763 para. 13 - 15 (Staple Dairy Products); Case 114/81, ECR
1982, 3189, para. 5-11 (Tunnel Refineries)). Therefore, the Court of Justice
should not follow the arguments in Advocate General Rantos’ opinion.
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