EU governments duck responsibility on dieselgate

Her answers were indicative of the lack of responsibility member states wish to take for the regulatory environment in which not only Volkswagen, but virtually all car companies have been allowed to break EU limits on pollutant emissions.

The questions were raised at the press conference held after a meeting of transport ministers in Luxembourg on Tuesday (7 June), a meeting which Schultz van Haegen chaired because her country holds the rotating six-month EU presidency.

Ministers had discussed what Schultz van Haegen had called a “need to clarify” EU rules, which include an exception saying that defeat devices are allowed if they are needed to protect the engine.

Germany had proposed to change the wording after it found out in April that the exception was used as a loophole by car companies, with some of them shutting down or reducing the effectiveness of emissions control systems merely when it is colder than 17C outside.

In a stunning conclusion, the German transport ministry had said in April the current rules “cause legal uncertainties among manufacturers and are not a sufficient basis to help type approval authorities to distinguish between lawful and unlawful defeat devices and to take legal action against the latter”.

The mentioned rules were proposed by the European Commission in December 2005, and signed into law in June 2007, after agreement by member states and the EU parliament.

'I don't know'

The engine exception, laid down in article 5.2 of the relevant regulation, was already in the original proposal. Why didn't anybody for more than a decade notice that it could cause legal uncertainties?

“I don't know why in the past this wasn't part of the debate,” said the Dutch minister.

“But as you know since the Volkswagen discussion, this is part of the debate. Everybody is now saying how can it be that there is a difference between the real driving emission test and the laboratory test?”.

That's why, Schultz van Haegen added, she had agreed to put a debate about article 5.2 on the agenda.

“To see if it still gives room for interpretation. The commissioner says: 'Well, it's very clear, but I'm going to clarify it again, and everybody who misused it, has to be fined, has to be punished'. I think it's important to really look into it, if it's really really clear, and if there is something we want to change for the future, for example, as I mentioned, to promote the newest, best technologies.”

The transcript of her answer might be a bit difficult to read and the answer may sound a bit convoluted because English is not her native language.

But it is clear that she did not wish to take responsibility for the lack of action by the Dutch government.

Her party, the centre-right Liberals, were part of the coalition government until four months before the rules were adopted, and for almost seven of the past 10 years.

Is a €19,500 fine 'dissuasive'?

The Dutch government, like other member states, were supposed to put in place “effective, proportionate, and dissuasive” penalties on the use of defeat devices.

Instead, several member states have fines that are lower than €20,000 - a fraction of the several billions in euros that car companies make.

Did minister Schultz van Haegen believe these fines - €19,500 in the Netherlands - were dissuasive?

“The fines, I haven't looked into that. But of course, you're right, they are relatively low towards the profits you can make. This is something we can also have a look at for the future,” she said.

“I didn't think about the fines before,” she responded to a follow-up question.

“This can be interesting, but I'm not saying now that we're going to do that in the Netherlands. I don't know if that's a national or European discussion on the fines.”

It's national. Each member state still has the sovereign power to determine the size of the fines, which is why the EU commission was unable to change the fact that some of them were so laughably low.

A third and final question.

Critics are arguing that because the EU rules require emissions control systems to operate during normal use of the car, a defeat device should not be allowed to switch it off when the temperature is at a level that can be considered normal in Europe, like lower than 17C, even if the device is there to protect the engine.

The commissioner said ...

When this website asked why no single national authority has taken legal action against any of the carmakers, Schultz van Haegen defected the question.

“Why the national countries didn't start any procedures? This is something that the commissioner also said. She said: 'We make the rules, but the national authorities should be very clear on what's allowed and what's not allowed'. She asked the member states in the debate also to take the own responsibility, and not only the responsibility by the commission, but also the own responsibility of the different member states.”

That was not an answer, but a summary of what EU industry commissioner Elzbieta Bienkowska had said at Tuesday's discussion.

Schultz van Haegen spoke as EU president, on behalf of member states. Perhaps she tried to stay neutral as president.

But as a consequence, she spoke more about member state governments as amorphous entities, instead of as elected public servants who owe their voters a better explanation of what went wrong.

Ironically, instead of taking Bienkowska's advice and lay out what individual countries like the Netherlands or Germany would do, the Dutch minister only said that her country is waiting for the results of emissions tests.

To the future!

During the debate, none of Schultz van Haegen's colleagues unambiguously took the mantle of blame to say how their respective governments could have done better. Instead, everyone wants to look to the future.

The same went for Schultz van Haegen.

“You can always look back and say: 'Why haven't we done this before?'. But I think that when you see that something goes wrong, it's important to immediately address it, and this is what happened this time.”

This comment does not bode well for those waiting for avowals.

During the press conference, Schultz van Haegen elicited some smiles when she took a photo with her smartphone of the audience - a small handful of journalists that had made the journey to Luxembourg.

But perhaps it would have been better if she, and her colleagues, had taken a selfie.

Some self-reflection among Europe's ministers is long overdue.