In response to a ruling by the General Court, today the Commission proposes to reinsert certain aspects of Real Driving Emissions testing (RDE) into legislation to be adopted by the European Parliament and Council.
The European Commission has been very active in promoting air quality, fighting climate change and supporting a shift to clean mobility. Actions include new and more reliable emissions tests in real driving conditions as well as an improved laboratory test. These efforts are already yielding results. New types of diesel vehicles tested both in the laboratory and on the road under real-world conditions and placed on the market since September 2017 emit significantly less than older types of diesel vehicles.
In December 2018, the General Court annulled some of the provisions of EU legislation on Real Driving Emissions testing. The Court judged that so-called “conformity factors” should not have been adopted via comitology procedure, but via ordinary legislative procedure. The annulment is of a partial nature and does not affect the actual RDE test procedure, which remains in force and must still be conducted at type-approval.
The Court delayed the effects of the partial annulment until February 2020 to give time to the Commission to implement the judgment. To avoid legal uncertainty on the type approvals granted since September 2017 – when the RDE test procedure became mandatory – the Commission proposes today to reinsert the same conformity factors into the legal text. The Commission is tabling the legal proposal via the ordinary legislative procedure, as requested by the General Court. The Commission thereby acts to ensure the necessary legal certainty for national authorities, industry and consumers.
Once adopted by the European Parliament and the Council, the Regulation will be directly applicable in all Member States and will become mandatory 3 days after publication in the EU Official Journal.
The legal framework for RDE was developed in comitology procedure, where the Commission makes a proposal to national experts, which may amend the proposal before voting. The text is then submitted to the European Parliament and Council for endorsement or rejection. This was the procedure followed for the adoption of RDE Act 2 (Regulation 2016/646), where the compromise found by Member State experts on 28 October 2015 was subsequently endorsed by the European Parliament and the Council.
In December 2018, the General Court annulled some of the provisions of RDE Act 2, namely the so-called “conformity factors”. Conformity factors establish the allowed discrepancy between the regulatory emissions limit that is tested in laboratory conditions and the values of the RDE procedure when the car is driven by a real driver on a real road, with the aim to progressively reduce this discrepancy.
In its ruling, the General Court did not question the technical necessity of the conformity factors, but considered that the Commission exceeded its implementing powers when establishing the RDE conformity factors through comitology instead of co-decision legislation (= ordinary legislative procedure). The Commission lodged an appeal against the General Court judgement in February 2019 on the grounds that it disagrees with the Court’s legal assessment that the Commission exceeded its implementing powers.
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