On 17 may 2017, the European Commission launched an infringement procedure against Italy for the breach of EU vehicle type-approval legislation by Fiat Chrysler Automobiles (FCA). By sending a letter of formal notice, the Commission is asking Italy to respond to the concerns that the manufacturer has not sufficiently justified the technical necessity, and thus the legality, of the defeat device used by Fiat Chrysler Automobiles group, and to clarify whether Italy has failed to meet its obligation to adopt corrective measures regarding the FCA type in question and to impose penalties on the car manufacturer. Italy has two months to respond to the arguments put forward by the Commission; otherwise, the Commission may decide to send a reasoned opinion.

According to Directive 2007/46/EC establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles and Regulation (EC) 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, it is the responsibility of the Member State which approved a vehicle type to verify that a car type meets all EU standards before being sold on the Single Market. When a car manufacturer breaches the legal requirements, Member States must also take corrective actions and apply penalties laid out in national legislation. EU type approval legislation bans defeat devices such as software, timers or thermal windows which lead to higher nitrogen oxides (NOx) emissions outside of the test cycle, unless they can be justified by the need to protect the engine against damage or accident, or for the safe operation of the vehicle. In the past, the Commission has already opened infringement procedures against Member States that issued type approvals for Volkswagen Group for not applying their national provisions on penalties despite the company’s use of illegal defeat device software. Following these revelations, the Commission called on Member States to carry out the necessary investigations into the possible presence of such devices in vehicles approved by their approval authorities. In the context of these investigations, some Member States have concluded that a number of manufacturers use emission strategies that can be justified because they are needed to protect the engine. In fact, the ban on defeat devices foresees an exemption 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.

The Commission has taken important steps to make vehicles more environment-friendly and to restore consumer confidence. On 26 January 2017, it published 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. It has also introduced more robust and realistic testing methods for measuring both nitrogen oxides (NOx) and CO2 emissions from cars.

Also on 17 May 2017, the European Commission decided to refer Italy to the Court of Justice of the European Union for breach of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, and specifically for extending a motorway concession contract without a prior call for tenders. EU Public Procurement rules aim to ensure that all economic operators have a fair chance to participate in a call for tender and to win a contract. Therefore, a new concession can only be awarded after a competitive tendering procedure except in special cases specifically regulated by EU law.

The Commission considers that Italy has failed to fulfil its obligations under EU public procurement rules, since the Italian authorities granted an 18-year-long extension of a concession contract to the Società Autostrada Tirrenica S.p.A. (SAT S.p.A) company that is currently in charge of building and managing the A12 motorway Civitavecchia-Livorno, without a prior call for tenders. The first concession was granted for 30 years in 1969. Since then, the concession has been extended twice, until 2028 and 2046 respectively. The Commission opened an infringement procedure against Italy on this matter, both in 2009 and 2014, without however resolving the issue, thereafter it decided to refer the matter to the Court of Justice.

Davide Scavuzzo