EU moves to end car-testing 'confidentiality clause'

That power imbalance emerged after investigations into the Dieselgate scandal, partly by this website, showed a lack of curiosity by national vehicle test authorities to find out if the obligatory laboratory tests were gamed.

As of 2020 the European Commission will have new powers in the area of 'type approvals' - the certification scheme carmakers need to be able to sell cars on the EU market.

And the commission's Joint Research Centre (JRC) will have a market surveillance role.

"This means that there will be no confidentiality agreements with manufacturers," a European Commission official told EUobserver, on condition of anonymity.

The official said that the commission has provided the JRC's emissions laboratories with an additional budget of €3.4m for 2020.

"The JRC will pay car rental fees from this budget," the contact said.

Dieselgate

Until now, 'type approvals' were the sole responsibility of authorities at national level.

But when the Dieselgate emissions scandal broke in September 2015, it became clear that the system was vulnerable to fraud.

Carmakers had used manipulation software known as defeat devices to trick the type approval test into thinking dirty cars were in fact emitting nitrogen oxide levels below the EU limit.

National enforcement was lacklustre because companies were able to simply decide to get their type approvals in another EU country if one authority became too tough.

Last year, the EU institutions agreed that the commission should have the power to do tests and slap fines of €30,000 per non-compliant car on companies if national authorities refuse to do so.

Under the old system, the JRC also did emissions tests, but formally only to feed into research, not to police the market.

Several years before Volkswagen Group admitted to using defeat devices in the US, JRC staff discussed suspicions of emissions cheating.

The fact that this did not lead to proper enforcement in the EU, was one of the European Parliament's main criticisms in its inquiry report on the scandal, adopted in 2017.

"The commission should have ensured that the JRC's research findings and concerns discussed among the commission services with regard to possible illegal practices by manufacturers reached the higher levels of the hierarchy – which allegedly did not happen – so that appropriate action could be taken. This constitutes maladministration," the parliament's inquiry committee said.

Commercial confidentiality clauses

But the JRC also had another problem: it had to rely on carmakers' willingness to actually lend a car for testing, which led to the JRC sometimes being faced with confidentiality agreements.

When the JRC wanted to send national authorities results of a test with a Volkswagen vehicle, it had to ask the German carmaker for permission, EUobserver revealed in 2016.

Earlier this month, this website reported that Porsche asked the JRC not to publish suspicious emissions results - a request which the EU research institute granted.

The JRC referred to a confidentiality clause it signed in the vehicle loan agreement with Porsche.

Only after an appeals process that took months, did the EU commission publish the results.

Corporate Europe Observatory said that the JRC could have put the confidentiality clause aside.

It cited case law by the Court of Justice of the EU, which ruled in 2016 that information on emissions into the environment cannot be kept secret citing confidentiality.

"It is understandable that the JRC is intimidated by the commercial confidentiality claims made by the car manufacturer. But threats of legal action are not only common when industry attempts to prevent disclosure of information it sent to EU institutions, they are also illegal under EU law, so the JRC should ignore them," said Corporate Europe Observatory researcher and campaigner Martin Pigeon.

New lab in Italy

Meanwhile, the JRC is getting ready for its new policing role.

Last October it announced it had ordered the construction of "two new state-of-the-art emission testing facilities" at its laboratory in Ispra, Italy.

The press statement published at the time said the new building was expected to be ready in February 2019 - but the commission official speaking off-the-record told EUobserver there was some manageable delay.

"The two new test laboratories VELA 10 and VELA 11 will be ready later in 2019, and will be fully equipped and start testing cars as part of the market surveillance role from September 2020 onwards," the official said. [VELA stands for Vehicle Emissions Laboratory.]

As for the JRC's budget after 2020, this depends on the outcome of negotiations on the seven-year EU budget cycle.

The commission has proposed that the budget for emissions testing in Ispra will be covered by funds from the so-called Single Market Programme, which needs to be approved by the European Parliament and national governments.

It did not propose a specific figure, but said that the JRC should have enough funds to check "around 120 vehicles per year, i.e. to a level similar to the US".

"Only with regular surveillance activities will the products be kept in conformity and cases of defeat devices uncovered," the commission said.

Peter Mock, managing director in Europe of the International Council on Clean Transportation (ICCT), said he did not question JRC's independence, based on its past reliance on lending cars from companies.

"Based on our experience so far, we are convinced that JRC will act as an independent testing agency for market surveillance," said Mock, whose ICCT played a key role in uncovering the Dieselgate scandal in the US.