On 17 May 2018, Paris, Brussels and Madrid presented their oral pleadings at the EU General Court in Luxembourg in their challenge of Commission Regulation 2016/646 regarding emissions from light passenger and commercial vehicles (the Regulation).
The Regulation defines the limits of pollutants, particularly, nitrogen oxides emitted during real driving emissions test (“RDE tests”) to which car manufacturers must subject light passenger and commercial vehicles as part of the approval processes for new types of vehicles. The new tests were introduced to address the “Dieselgate” scandal and the realisation that tests carried out in laboratories do not accurately reflect the level of pollutants emitted during real driving conditions and to prevent the use of “defeat devices”.
However, the Regulation also introduced so called “Conformity Factors” which effectively introduced a transitional period for car manufacturers to adjust to the new testing conditions. The effect of this Conformity Factors is to water down the so-called “Euro 6 standard” with the effect that from September 2017 for new models and from September 2019 for new vehicles, NOx emissions can legally exceed the 80 mg/km limit previously set by up to 110%. From January 2020 for new models and from January 2021 for new vehicles, NOx emissions can still legally exceed the 80 mg/km limit by up to 50%.
The Regulation was also the subject of a case brought by 1429 individuals seeking compensation for harm that they claim to have suffered as a result of the introduction of the Regulation. However, on 4 May 2018 the EU General Court dismissed this case as lacking any basis in law.
In the present case, a central point of contention is the question of standing of the cities before the Court. Under the EU treaties (article 263 TFEU), cities are not explicitly named as “privileged applicants” as opposed to the Member States and EU institutions. Therefore, cities do not automatically have standing before the EU courts.
The applicants accordingly argue that the cities should be considered to be “directly affected” by the measure. They submitted that they are directly affected because the Regulation restricts their powers to regulate the air quality in their cities, that they are obliged to implement EU acts and should therefore also have a right to challenge these acts; and that they may be held liable for failing to impose adequate protections of their citizens.
On the substance of their claims, the applicants firstly submit that the Commission lacked the competence to adopt the Regulation. The Regulation was adopted under the “regulatory procedure with scrutiny”, a procedure with limited oversight by European Parliament and the Council intended for the amendment of “non-essential elements”. The cities argue that the introduction of new emission limits in the Regulation cannot be considered as “non-essential”. Secondly, the applicants submit that the Regulation infringes overarching legal norms, including those related to the environment.
The mayor of Paris, Ms. Anne Hidalgo, and the mayor of Brussels, Mr. Philippe Close, were both present at the hearing and presented part of their cities’ argument. Ms. Hidalgo called upon the court to redress the imbalance in access to justice between car manufacturers and the representatives of citizens breathing polluted air.
The case is important as it concerns the role of cities as an actor to keep the Commission in check and ensure that its own environmental policies are not undermined. As also stated by the applicants in their pleadings, cities may be less captured by big lobbying groups and can therefore play an important role where their government fail to act. In light of the well-known restrictions for EU citizens and their organisations to bring challenges before the EU courts to protect their rights, cities may partially fill a gap in the protection of environmental rights.
The challenge is also relevant for air quality matters. In more than 130 cities across Europe, levels of nitrogen dioxide (NO2) exceed legal limits. Emissions from traffic and, particularly, diesel vehicles are the main cause for such exceedances. An increasing number of cities are introducing traffic regulations that restrict (such as Low Emissions Zones – LEZ – and Clean Air Zones – CAZ) or charge for access of vehicles. Last February, the German Federal Administrative Court confirmed that German cities have the power and duty to restrict diesel vehicles in order to comply with air quality legal limits.
However, since such urban access regulations are usually linked to vehicle age and Euro Standards, the Regulation and its watering down of the Euro 6 standard has been criticised by cities as a move that will make it more difficult for them to achieve compliance with air quality targets. Accordingly, cities would have to rely on the Euro standards when adopting restrictions on vehicles but may not have a right to challenge the Commission if these standards are lowered. This is particularly relevant because cities and Member States may in turn be liable for failing to meet air quality standards. In fact, Spain, Belgium and France all face infringement proceedings started by the Commission for breaches of air quality legal limits and France was included among the Member States referred to the Court of Justice of the EU just two weeks ago .