The European Commission proposes amendments to emissions regulations following CAA proposal
14 December 2022
The Clean Air Association has consultative status to the World Forum for Harmonization of Vehicle Regulations (WP.29) at the United Nations Economic Commission for Europe (UNECE). The WP.29 is a transnational regulatory forum which develops regulatory frameworks for vehicles, working to make vehicles safer and more environmentally friendly (see e.g., NEDC, WLTP and RDE Regulations).
At the 86th session of the WP.29's Working Party on Pollution and Energy (GRPE), the Clean Air Association proposed amending the definition of a "defeat device" found in some UN Regulations. The Association's proposal would have made expressly clear that a defeat device could be justified only in the exceptional circumstance where there is a risk of immediate damage to the engine. CAA's proposal would help ensure that UNECE members could interpret defeat device provisions uniformly, something which has become more challenging following CJEU judgments which are binding only in EU Member States. The CAA's complete proposal can be found here.
At the 86th session of the GRPE, the European Commission (the Commission) objected to the CAA proposal, noting that litigation with respect to the defeat device definition is ongoing and suggested that once they are settled the definition could be looked at for potential amending. The Chair of the GRPE acknowledged that the CAA amendment touched on an "important issue" and that some regions have clarified the matter. He invited GRPE to potentially revisit the topic when discussing the 08 series of amendments to UN Regulation No. 83. You can find the full report of the 86th GRPE session here.
Following several seminal CJEU cases,[1] which touched on the defeat device definition and its exceptions, the Commission submitted its proposal for a new 08 series of amendments to UN Regulation No. 83. The complete proposal can be found here. A key feature of the proposal is that it effectively requires manufacturers to submit documents to authorities proving "sudden and irreparable damage" in line with an exception for the use of a defeat device present in the regulations. Furthermore, the proposal sets out a methodology that national authorities can follow to determine whether a manufacturer's emissions strategy complies with the relevant emissions regulation.
The CAA welcomes these aspects of the Commission's proposals, which conform to the interpretation adopted by the CJEU and achieve the objectives of the CAA's earlier proposal.
As the CAA prepares for the upcoming 87th session of the GRPE, it intends to further scrutinise other aspects of the Commission's proposal and put forward amendments promoting cleaner air.
[1]: See C-128/20 GSMB Invest GmbH & Co. KG v Auto Krainer GmbH [2022] ECLI:EU:C:2022:570, C-134/20 IR v Volkswagen AG [2022] ECLI:EU:C:2022:571, DS v Porsche Inter Auto GmbH & Co. KG, Volkswagen AG [2022] ECLI:EU:C:2022:572, and Deutsche Umwelthilfe eV v Bundesrepublik Deutschland [2022] ECLI:EU:C:2022:857.