Balancing market needs and environmental protection: Vehicle approval in the European Union

DOI10.1177/1023263X18794409
Date01 August 2018
Publication Date01 August 2018
AuthorDiego Zannoni
SubjectArticles
Article
Balancing market needs and
environmental protection:
Vehicle approval in the
European Union
Diego Zannoni*
Abstract
Road transport today is responsible for almost a quarter of Europe’s greenhouse gas emissions,
and poses a set of challenges. Traditional regulatory instruments, adopted by the European Union
to reduce vehicle emissions, are increasingly accompanied by measures that promote the use of
alternative fuels and propulsion systems that would drastically reduce, if not reset, CO
2
emissions.
Some EU Member States are even planning to adopt more drastic measures: banning future sales of
petrol and diesel cars. The article will attempt to highlight the special relationship that can be
drawn between common market needs on the one hand, and protecting human health and the
environment on the other, and then between EU and broader international standards. Both
intertwine when enacting and then assessing the normative framework applicable to vehicles,
culminating in the complex assessment of EU norms that regulate the approval of types of vehicles.
The objective is to consider the current law framework, pointing out its weaknesses and making
some de iure condendo proposals.
Keywords
Type-approval, vehicles, transport, pollutant emissions, CO
2
emissions
1. Introduction
The Treaty of Rome did not include environmental protection among the Community objectives.
Soon after the Treaty entered into force, it became nonetheless clear that different environmental
standards could constitute a barrier to trade among Member States. Thus, the adoption of common
environmental standards strove to establish the proper functioning of the common market as a
whole, rather than simply protecting the environment. Only through the Single European Act was
the Community explicitly entrusted with the protection of the environment, which was
* University of Padova, Italy
Corresponding author:
Diego Zannoni, University of Padova, via del Santo 28, Padua 35123, Italy.
E-mail: diego.zannoni@unipd.it
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(4) 500–515
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18794409
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subsequently fostered by the Maastricht Treaty as an autonomous objective to be integrated into all
European Union action areas.
1
This general trend is clearly evident when considering the measures that the EU has taken to
reduce CO
2
and polluting emissions from conventional vehicles, and then to encourage the use of
lead-free petrol vehicles. Compliance to maximum thresholds of vehicle pollutant emissions was
set starting in the 1970s.
2
Such legislation was based on Article 114 Treaty on the Functioning of
the European Union (TFEU; at that time Article 100 Treaty on the European Economic Commu-
nity, TEEC), since different e missions standards within the M ember States would hinder the
establishment and proper functioning of a single automobile market.
3
Amended and updated
several times, it is still part of the harmonized framework regulating vehicle type-approval,
gradually tightening the emission requirements for motor vehicles through the introduction and
subsequent revision of the so-called Euro standards.
LegislationonCO
2
emissions is more recent. It developed in parallel as the EU started undertaking
international commitments, firstly to stabilize and then to reduce greenhouse gas emissions
4
to achieve
the objectives on climate change mitigation and temperature targets.
5
This legislation embodies different
kinds of instruments, some that set CO
2
reduction targets for certain categories of vehicles, allowing at
the same time manufacturers to have flexibility in choosing the strategies to attain such targets.
6
Regulatory instruments to achieve th e general objective of reducing veh icle emissions are
increasingly accompanied by measures that promote the use of alternative fuels and propulsion
systems that would drastically reduce, if not reset, CO
2
emissions.
7
Some EU Member States are
even planning to take more drastic measures: banning future sales of petrol and diesel cars.
1. See further, for an historic overview, A.R. Ziegler, Trade and Environmental Law in the European Community (Oxford
University Press, 1996), p. 131–146; J.H. Jans, European Environmental Law (Europa Law Publishing, 2000), p. 3–10.
2. Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to
measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles, [1970] OJ L 76/1
(Council Directive 70/220/EEC). For an historic overview of the EU legislation on air quality see, J.H. Jans, European
Environmental Law, p. 359-368 and, for a more detailed survey, S.P. Johnson and G. Corcelle, The Environmental
Policy of the European Communities (2nd edition, Kluwer Law International, 1995), p. 126–153.
3. See the Preamble to Council Directive 70/220/EEC.
4. Today, road transport is responsible for almost a quarter of Europe’s greenhouse gas emissions. Compare, Commu-
nication from the Commission to the European Parliament, the Council, the European Economic and Social Committee
and the Committee of the Regions. A European Strategy for Low-Emission Mobility, COM(2016) 0501 final.
5. The EU is a Party to the ParisAgreement. On the Paris Agreementsee S. Oberthu
¨r, ‘Perspectiveson EU Implementation of
the Paris Outcome’, 10 Carbon& Climate Law Review (2016), p. 34–45; E. Fasoli, ‘Reviewand Adjustment Procedures
Under the ClimateChange Treaty Regimes’, 11 Carbon & Climate LawReview (2017), p. 261–267.
6. See infra para. 3. This work will not dwell on the demand-side measures aiming to reduce CO
2
emissions through
influencing the demand for certain vehicle types. In this category it is possible to include Directive 1999/94/EC of the
European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on
fuel economy and CO
2
emissions in respect of the marketing of new passenger cars, [2000] OJ L 12/16 and Directive
2009/33/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of clean and energy-
efficient road transport vehicles, [2009] OJ L 120/5. Whilst they do not directly aim to reduce tailpipe CO
2
emissions of
vehicles, these demand-side instruments set up complementary measures to encourage the demand for, and uptake of
low carbon vehicles. The ‘Car CO
2
Labelling Directive’ does this through improving consumers’ knowledge, enabling
them to differentiate between vehicles and demand better fuel efficiency, whereas the ‘Clean Vehicle Directive’ uses
public procurement as a mechanism to stimulate the uptake of low carbon vehicles, because it contemplates that in
public procurement the volume of pollutant and CO
2
emissions shall be taken into account for the purchase of vehicles.
7. For an overview of incentives currently in force in EU Member States see European Alternative Fuels Observatory
(EAFO), ‘Incentives and Legislation’, EAFO (2018), http://www.eafo.eu/incentives-legislation.
Zannoni 501

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