On 14 June 2019, the European Commission presented a Regulation proposalreinserting certain aspects of Real Driving Emissions testing (RDE) into legislation to be adopted by the European Parliament and Council.

The proposal results from the General Court’s rulingof December 2018, in which it annulled some of the provisions of RDE Act 2regarding the so-called ‘conformity factors’, since they should not have been adopted via comitology procedure, but via ordinary legislative procedure.

Conformity factors establish the allowed discrepancy between the regulatory emissions limit that is tested in laboratory conditions and the values of the RDE procedure when the car is driven by a real driver on a real road, with the aim to progressively reduce this discrepancy. Even though the General Court did not question the technical necessity of the conformity factors, it considered that the Commission exceeded its implementing powers when establishing the RDE conformity factors through comitology instead of co-decision legislation (ordinary legislative procedure).  

The comitology procedure was used to develop the legal framework for RDE. Under this procedure, the Commission makes a proposal to national experts, which may amend the proposal before voting. The text is then submitted to the European Parliament and Council for endorsement or rejection.

The General Court has annulled the part of RDE Act 2 that established the conformity factors. The annulment is of a partial nature and does not affect the actual RDE test procedure, which remains in force and must still be conducted at type-approval. In order to avoid legal uncertainty on the type approvals already granted since 1 September 2017, the General Court has delayed the effects of the annulment by a maximum period of 12 months, (i.e. 23 February 2020) to give time to the Commission to implement the judgment.

Sara Capruzzi