Nine years late, UK mulls EU fines for 'defeat devices' in cars

The question is peculiar, given that emissions cheating – done through so-called defeat devices – have been banned in the entire EU since 1998, two decades ago, and an EU deadline to put penalties in place has passed nine years ago.

"These proposals are simply too little too late," said centre-left Labour MEP Seb Dance.

The department in London said on Friday that the new rules were needed after the emissions cheating scandal with the German carmaker Volkswagen Group (VW), uncovered in September 2015.

VW had equipped some 8.5 million diesel cars in Europe with software which was aimed at cheating the emissions test.

"The recent VW Dieselgate scandal has led to suggestions that stringent penalties should be in place for supplying a vehicle with a device designed to circumvent regulatory testing (a 'defeat device')," the UK government said.

The reference to 'suggestions' is somewhat surreal, given that there is an actual legal obligation for the UK to have "effective, proportionate and dissuasive" penalties in place.

"Sanctions for defeat devices should have been in place years ago," MEP Dance told EUobserver in a written statement.

The British MEP was one of the members of an inquiry committee into emissions cheating in 2016.

"Successive Conservative governments have been dragging their heels on tackling air pollution for almost a decade now," he added.

However, the Conservative party does not have a monopoly on a delayed implementation of EU emissions rules.

The currently applicable regulation on car emissions dates from 2007, when the Gordon Brown Labour government was in power.

The legislation said that by 2 January 2009, member states should inform the European Commission what potential penalties they had put in place – a deadline which all member states missed.

The UK did not inform the commission about its penalty provisions until 2013, when it wrote in an email that the primary sanction of infringement of the approval rules was that a given car type would not be allowed to register – but nothing more.

End to mutual recognition?

A novelty in the plans announced on Friday, was that penalties would also apply to cars which have not been registered in the UK.

However, it is not certain that this is a legal possibility as long as the UK is a member of the European Union.

The EU's current car type approval system is based on the practice of mutual recognition: a car company can choose any EU country to do the tests, following which the approval certificate is valid in all EU countries.

Only the national authority which has approved a certain car type, currently has the power to fine emission fraudsters.

In future, the European Commission would also be able to do come after emissions cheaters, if a country is failing to do so.

Ironically, the UK has recently been reprimanded by the commission for not fining Skoda, VW's daughter company which had acquired type approvals in the UK for diesel cars equipped with defeat devices.

In December 2016, the commission started a legal procedure against the UK and several other member states.

That process, known as the infringement procedure, is slow however. The last letter which the commission sent to the UK, asking for clarification, was sent over 200 days ago, on 13 July.

"Assessment is ongoing," said a commission spokeswoman, who did not want to comment on the UK's consultation.

No more cheating

The transport department also released an impact assessment on Friday, which assess the proposed penalties – along with several other new measures.

The authors said that emissions fraud "investigations and prosecutions in the near future are unlikely".

They give three reasons for their confidence that emissions cheating would no longer occur: the new penalties would provide a deterrent effect; new guidelines "brought clarity to the definition" of a defeat device making it "unlikely" that a carmaker would cheat; and finally the Dieselgate scandal has made carmakers "extremely rigorous in ensuring that defeat devices are not fitted".

The deadline for the consultation is 2 March.

A spokesman for the department of transport said on Friday evening in an e-mailed statement that the UK was already meeting its obligations under EU law.

"However we are now looking to go further. We are proposing these new regulations because it is the right approach to protect UK consumers and our society from deliberate wrong-doing by manufacturers," he said.

He said that emission cheaters could already be given a potentially "unlimited fine", but that there was no precedent for that. He did not explain why no fine has been given to Skoda.

This article was updated on Friday 2 February, 6:45pm, to include comments from the department of transport