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The VW emissions scandal has brought vehicle ‘defeat devices’ very much into public view.  But fresh litigation now looms as to whether new details to be provided by manufacturers can themselves be kept secret.

Except in the case of a few specified exceptions (e.g. vehicle safety) defeat devices are already banned: see Article 5 of Regulation (EC) No 715/2007.  And the EU has now taken further steps to tighten things up by requiring manufacturers to provide the relevant approval authorities with more information as to their use of ‘auxillary emission strategies’ (AES).  An AES is defined by Regulation (EU) 2017/1151 as “an emission strategy that becomes active and replaces a [Base Emission Strategy (BES)] for a specific purpose and in response to a specific set out ambient or operating conditions and only remains operational as long as those conditions exist”.  A BES is the flip side of the same coin: “an emission strategy that is active throughout the speed and load operating range of the vehicle unless an [AES] is activated”.  Specifically, manufacturers will now have to provide the information listed in Appendix 3a of Annex I to Regulation (EU) 2017/1151.  It is a long list:

“The extended documentation package shall include the following information on all AES:

(a) a declaration of the manufacturer that the vehicle does not contain any defeat device not covered by one of the exceptions in Article 5(2) of Regulation (EC) No 715/2007;

(b) a description of the engine and the emission control strategies and devices employed, whether software or hardware, and any condition(s) under which the strategies and devices will not operate as they do during testing for TA;

(c) a declaration of the software versions used to control these AES/BES, including the appropriate checksums of these software versions and instructions to the authority on how to read the checksums; the declaration shall be updated and sent to the Type Approval Authority that holds this extended documentation package each time there is a new software version that has an impact to the AES/BES;

(d) detailed technical reasoning of any AES; including explanations on why any of the exception clauses from the defeat device prohibition in Article 5(2) of Regulation (EC) No 715/2007 apply, where applicable; including hardware element(s) that need to be protected by the AES, if applicable; and/or proof of sudden and irreparable engine damage that cannot be prevented by regular maintenance and would occur in the absence of the AES along with a risk assessment estimating the risk with the AES and without it; reasoned explanation on why there is a need to use an AES for starting the engine;

(e) a description of the fuel system control logic, timing strategies and switch points during all modes of operation;

(f) a description of the hierarchical relations among the AES (i.e., when more than one AES can be active concurrently, an indication of which AES is primary in responding, the method by which strategies interact, including data flow diagrams and decision logic and how does the hierarchy assure emissions from all AES are controlled to the lowest practical level;

(g) a list of parameters which are measured and/or calculated by the AES, along with the purpose of every parameter measured and/or calculated and how each of those parameters relates to engine damage; including the method of calculation and how well these calculated parameters correlate with the true state of the parameter being controlled and any resulting tolerance or factor of safety incorporated into the analysis;

(h) a list of engine/emission control parameters which are modulated as a function of the measured or calculated parameter(s) and the range of modulation for each engine/emission control parameter; along with the relationship between engine/emission control parameters and measured or calculated parameters;

(i) an evaluation of how the AES will control real-driving emissions to the lowest practical level, including a detailed analysis of the expected increase of total regulated pollutants and CO2 emissions by using the AES, compared to the BES.’

So far so good, but the problem is that the EU has decided that this information, which is to be provided by the manufacturers to the relevant approval authorities – in the UK the Vehicle Certification Agency –  “shall remain strictly confidential”: see Article 5 of Regulation (EU) 2017/1151 as amended by Regulation (EU) 2017/1154.

ClientEarth, a not-for-profit environmental law group, has started proceedings seeking to persuade the Court of Justice of the European Union to annul the confidentiality clause, on the basis that it contravenes well-established principles of public access to environmental information.  Of course, the greater the level of detail required the greater the claim for confidentiality.  But calls for public scrutiny are all the more understandable in the light of the VW scandal.  The Commission has struck what it sees as the right balance.  And would it require the same information if that information was not to be kept confidential?  A difficult problem at the heart of the most important of issues.

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