EU countries snub commission on emissions penalties

Before the Dieselgate scandal broke in September 2015, the commission did not have a complete picture how states would punish carmakers for using emissions cheating software.

Following the revelation that VW had used such cheating software, which has been banned since the late 1990s, the commission took a renewed interest in how member states had implemented their obligation to lay down dissuasive penalties for violating EU legislation on passenger cars.

But while the focus this past year has been on implementing passenger cars legislation, this website has now found that a similar problem exists in legislation on tractors and trucks.

In November 2015, two months after the Volkswagen scandal broke, the EU's executive sent a letter to member states asking them what penalties they had laid down in national law to deter the use of illegal software in tractors and other vehicles used in agriculture and forestry.

They were supposed to have informed the commission earlier that year, but only the three Baltic states were on time. Despite the commission's nudge on 18 November 2015, only six of the EU's 28 member state have now complied with the commission's request: Cyprus, Estonia, Finland Latvia, Lithuania, the Netherlands.

This means that the commission officially has no idea how the other 22 member states are deterring the use of defeat devices in tractors.

By not informing the commission, the other 22 member states have broken their own promises.

In 2013, all 27 members – Croatia was not yet a member – voted unanimously in favour of new rules on how to approve vehicles used in agriculture and forestry.

Cushioning the industry

EUobserver also saw documents relating to the implementation of fines for trucks and waterborne vehicles.

On trucks, member states were supposed to have sent their information on “effective, proportionate and dissuasive” penalties by 7 February 2011. Only Denmark did so.

Following a 2013 commission letter nudging member states, only eight of them replied with a letter detailing their penalties in the field of truck approvals.

The commission has apparently taken no action since, according to documents provided under the freedom of information request.

A commission spokeswoman confirmed the picture that arose in EUobserver's investigation.

She said that is was "not up to the commission to speculate about reasons behind [member states'] actions.”

“We currently analysing the information received and will assess the need for any further action.”

The spokeswoman also said, somewhat mysteriously, that EUobserver would get “a more substantial comment” if it asked again “in a few weeks”.

Julia Poliscanova of environmentalist lobby group Transport & Environment (T&E), says national governments do not want the commission to meddle in profitable vehicle manufacturing and testing industries.

"They simply failed to put in place strong penalties because they never wanted to penalise anyone, and are still trying to cushion the car industry today, one year after the emissions scandal broke," she said.

Regulation vs directive

Member states were somewhat more well-behaved when it came to implementing the rules for waterborne vehicles such as water scooters. These rules include limits to noise and pollutant emissions.

A main difference is that the watercraft rules were laid down in a directive, which needed to be transposed by 18 January 2016. Up until now 21 of 28 member states have informed the commission of transposition.

While regulations are legally applicable directly in member states, directives require a national law.

Although regulations on cars, trucks, and tractors also required action by national government on the specific penalties to be imposed.

In its reply informing the commission about the implementation of the agriculture vehicles regulation, Latvia noted it would have been better if the regulation had included laying down specific penalties.

Latvia wrote that a “uniform penal system must be in place in all the EU Member States thus, in our opinion, the penalty scheme and its volume must be laid down at the level of the European Union”.

According to Poliscanova, in the current European system with 28 member states "you can never have a situation where each and every word and provision in the law is scrupulously described".

"This is why EU laws, in the area of single market in particular, rely on independent regulators in the member states to correctly and consistently enforce them,” she said.

She added that the Dieselgate scandal had “clearly exposed the failure of the national regulators to do their work and apply the law”.

But according to the EU commission spokeswoman, a required transposition of a provision in regulation is “a common feature of various regulations”.

The issue with trucks and tractors comes after a previous investigation by EUobserver showed that the EU was facing similar difficulties in getting information on passenger cars.