Elżbieta Bieńkowska, Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, said: "National investigations into the emissions scandal are revealing that a large number of car manufacturers use strategies that increase emissions outside of the test cycle. This is illegal unless technically justified in exceptional cases, and the burden of proof lies with the carmaker. Cheating cannot be tolerated. Today we are offering guidance to Member States on how to enforce the law better."
Defeat devices are clearly banned by EU law. Car manufacturers have an obligation to comply with this law and respect the ban which has been in place since 1998. Under current rules (Regulation (EC) 715/2007), national authorities and their technical services are fully responsible for enforcing this ban.
The Commission has already taken important steps to improve the measurement of vehicle emissions with tests in real driving conditions, which will also reduce the possibility of cheating. Additionally, since May 2016 (under "RDE Act 2"), car manufacturers need to declare and get approval of their emissions reduction strategies before the car can be placed on the market. Moreover, the Commission's proposed overhaul of the entire type approval system foresees an obligation on car manufacturers to grant relevant authorities access to their emissions software protocol.
At the same time, the Commission is closely following Member States' efforts to clarify the possible wrongdoing by car manufacturers in the past. At the Commission's request in the wake of the Volkswagen revelations, Member States are carrying out investigations into the possible presence of defeat devices in vehicles on their territories. In the context of these investigations, some Member States have concluded that a number of manufacturers use emission strategies that can be justified and legal because they are needed to protect the engine. Other Member States abstained from taking a clear position on the legality of the emission strategies pointing to an alleged lack of clarity of the ban and its exemptions. Prior to the emission scandal no Member State or car manufacturer raised the issue of lack of clarity.
The ban on defeat devices foresees an exemption (both under EU and US law) for when the need for the device is justified to protect the engine against damage or accident and to ensure the safe operation of the vehicle. It is up to the manufacturer to demonstrate to the national authority that any use of defeat devices is covered by one of the exceptions and is technically necessary. The Commission is not in a position to corroborate these claims for now, without all the underlying information.
Upon the request of various Member States, the Commission is today providing further guidance on how to interpret these exemptions and evaluate car manufacturers' emissions reduction strategies. This guidance will enable the Member States to take a position on the legality of the emission strategies revealed during their national investigations.
A car manufacturer using emissions abatement strategies should be able to justify questions such as:
- Is the increase of emissions kept at the lowest possible level?
- Is there no better technology or design on the market that would allow for improved emission control or safer operation of the engine?
- Can the risk of sudden and irreparable engine damage be appropriately demonstrated and documented?.
The guidance also highlights examples of emissions strategies that require particular attention, which include:
- Strategies that lead to higher emissions when starting the engine in hot start than cold start
- "Thermal windows" where emissions increase below or above certain ambient temperature ranges
- Parameters such as a timer or the vehicle's speed that are used to modulate emission control systems
In addition, the guidance also includes a detailed common methodology, elaborated with the help of the Commission's in-house Joint Research Centre, to help Member States identify possible cases of defeat devices through targeted emission tests as part of their market surveillance obligations. It recommends how to ensure a relevant selection of vehicles and which emissions tests to carry out in the laboratory and in real driving conditions to identify suspicious behaviour in vehicles' exhaust emissions.
This guidance should be updated yearly, with the help of member states and as new evidence becomes available in the future.