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European Commission publishes guidance on defeat devices

The European Commission is publishing guidance to help Member States evaluate if car manufacturers use defeat devices or other strategies that lead to higher vehicle emissions outside of the test cycle and analyse whether they are technically justified.

Elżbieta Bieńkowska, Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, said: “National investigations into the emissions scandal are revealing that a large number of car manufacturers use strategies that increase emissions outside of the test cycle. This is illegal unless technically justified in exceptional cases, and the burden of proof lies with the carmaker. Cheating cannot be tolerated. Today we are offering guidance to Member States on how to enforce the law better.”

Defeat devices are clearly banned by EU law. Car manufacturers have an obligation to comply with this law and respect the ban which has been in place since 1998. Under curent rules (Regulation (EC) 715/2007), national authorities and their technical services are fully responsible for enforcing this ban.

The Commission has already taken important steps to improve the measurement of vehicle emissions with tests in real driving conditions, which will also reduce the possibility of cheating. Additionally, since May 2016 (under “RDE Act 2”), car manufacturers need to declare and get approval of their emissions reduction strategies before the car can be placed on the market. Moreover, the Commission’s proposed overhaul of the entire type approval system foresees an obligation on car manufacturers to grant relevant authorities access to their emissions software protocol.

At the same time, the Commission is closely following Member States’ efforts to clarify the possible wrongdoing by car manufacturers in the past. At the Commission’s request in the wake of the Volkswagen revelations, Member States are carrying out investigations into the possible presence of defeat devices in vehicles on their territories. In the context of these investigations, some Member States have concluded that a number of manufacturers use emission strategies that can be justified and legal because they are needed to protect the engine. Other Member States abstained from taking a clear position on the legality of the emission strategies pointing to an alleged lack of clarity of the ban and its exemptions. Prior to the emission scandal no Member State or car manufacturer raised the issue of lack of clarity.

The ban on defeat devices foresees an exemption (both under EU and US law) for when the need for the device is justified to protect the engine against damage or accident and to ensure the safe operation of the vehicle. It is up to the manufacturer to demonstrate to the national authority that any use of defeat devices is covered by one of the exceptions and is technically necessary. The Commission is not in a position to corroborate these claims for now, without all the underlying information.