EU mulls allowing some curbs on emissions filters

The document is a presentation by the commission's directorate-general for internal market, industry, entrepreneurship and SMEs (DG Growth), and its in-house science body, the Joint Research Centre (JRC). Its audience probably were member states representatives.

The subject is how to determine when the use of emissions filter switch-off software, known as defeat devices, is legal.

Defeat devices are banned under EU legislation, unless they are necessary to protect the engine of the vehicle.

Several car companies are clinging to this exception in the legislation, although critics say that the law also requires emissions filter systems to operate under normal conditions, and that an exception cannot be used continuously.

The document said that while there was a general understanding of the ban, judging if the defeat device falls under the exception “appears more difficult”.

It is titled Guidance on Defeat Devices and dated 13 June 2016, a week after industry commissioner Elzbieta Bienkowska told transport ministers that the law “is clear enough, and we all know it”.

Despite that, she also said the commission was prepared to give member states legal guidance.

'Problematic behaviours'

The document seen by this website appears to be a draft version of that guidance.

The document lists several “problematic behaviours” employed by producers of diesel cars, and “possible guidance” on how to respond to such behaviours.

Switching off the emissions control mechanism known as exhaust gas recirculation (EGR) “in order to protect the engine from overheating at high ambient temperatures should not be allowed since valid technical measures are available to avoid such situations in European ambient temperatures”.

The anti-pollution system in some cars is less effective when it is 17C or lower outside.

Likewise, the commission paper said there was “no valid technical justification” that already hot engines would be worse at filtering emissions than cold engines.

The text also appears to provide the argument that reducing the effect of the emissions filter after 22 minutes, like a Fiat model has been suspected of doing, is not allowed. The official EU test is 20 minutes.

“The use of a timer to reduce or turn off systems which affect the emissions performance… is strictly forbidden by the rules,” the document says.

10C or lower

The presentation also discussed the use of a device used to protect the engine against condensation of the EGR system, something which some carmakers have said can happen when it is cold outside.

Strikingly, the paper mulled the option to provisionally give carmakers a free pass if their software is aimed at “condensation protection” at outside temperatures of 10C or lower.

“As a temporary measure the following are allowed until xxx: use of this [emission strategy] in atmospheric temperature below 10C,” it says. The 'xxx' likely refers to a date to be determined in future.

It added that the United States “also accepted” such configurations at temperatures below 10C, but also noted that this acceptance “was temporary and was suspended as from 1 January 2004”.

The suggestion is notable, because in recent months the EU commission seemed to take a harder line against the car industry than member states have done.

But the idea was also not final, as can be concluded from the presentation's ending, with the statement that the commission looked forward “to working with you on developing this guidance further”.

Legal action against EU countries

At a hearing in the EU parliament last September, Bienkowska said the final guidance on defeat device legislation “will be tabled by December, hopefully the beginning of December”.

EU commission spokeswoman Lucia Caudet told EUobserver on Thursday that "work on possible guidance is ongoing".

"The Commission has not reached any views at this stage, not least because we are still awaiting explanations about the technical justification behind the claim that some manufacturers need to use defeat devices to protect the engine," said Caudet.

Bienkowska also made another promise.

The commissioner said she was preparing to take legal action against member states that did not do enough to ensure carmakers were following EU rules.

“You will definitely see some infringement procedures next month,” she said on 13 September.

However, the first scheduled date for infringement decisions is on 17 November – according to a commission source the October and November infringement packages were “merged” for “logistical reasons”.

The document's content was first reported on Wednesday (19 October) by German weekly magazine Stern, which also revealed that Germany's environment ministry was very critical of a report by the country's transport ministry, on real-world emissions in diesel cars.

The German report was published in April and showed that many carmakers have suspiciously high emissions, but the tone of the report was mild towards the car industry.

Transport minister Alexander Dobrindt is due to appear in front of the European Parliament's Dieselgate inquiry committee on Thursday (20 October). The same day his counterpart from the environment ministry, Jochen Flasbarth, will be interrogated by German MPs.

This article was updated on Thursday 20 October to include a comment from the European Commission