2006/372/EC: Commission Decision of  3 May 2006  concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by diesel powered vehicles  (notified under document number C(2006) 1791)
Date: 2006-05-03
Institutions: European Commission
Subjects: EC Directive, EU law - national law, Netherlands, air quality, derogation from EU law, diesel engine, motor vehicle

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Official Journal of the European Union

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 3 May 2006

concerning draft national provisions notified by the Kingdom of
the Netherlands under
Article 95(5) of the EC Treaty laying down limits on the emissions of particulate matter by
diesel powered vehicles

(notified under document number C(2006) 1791)

(Only the Dutch text is authentic)

(2006/372/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community, and in particular Article 95(5) and (6) thereof,

establishing the European

Whereas:

(1)

I. FACTS

1. Relevant Community legislation

Directive 98/69/EC of the European Parliament and of
the Council of 13 October 1998 relating to measures to
be taken against air pollution by emissions from motor
vehicles and amending 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 (1)
sets a limit value for particulate
emissions at 25 milligrams per kilometre (see Section
5.3.1.4 of Annex I to the Directive) for diesel vehicles
in category M as defined in Annex II, Section A, to
Council Directive 70/156/EEC of 6 February 1970 on
the approximation of the laws of the Member States
relating to the type-approval of motor vehicles and
their trailers (2) — except vehicles the maximum mass
of which exceeds 2 500 kg — and N1, class I. This
limit value applies from 1 January 2005 to new types
of vehicles and from 1 January 2006 to new vehicles.
The Directive also sets a limit value for particulate
emissions of 40 milligrams per kilometre for diesel
vehicles in category N1, Class II and a limit value for
particulate emissions of 60 milligrams per kilometre for
diesel vehicles in category N1, Class III and M whose

maximum mass exceeds 2 500 kg. These two latter
limit values apply from 1 January 2006 to new types
of vehicles and from 1 January 2007, to new vehicles.

(2)

According to Article 2(1) of Directive 98/69/EC ‘… no
Member State may, on grounds relating to air pollution
by emissions from motor vehicles:

— refuse to grant EC type-approval pursuant to Article

4(1) of Directive 70/156/EEC, or

— refuse to grant national type-approval, or

— prohibit the registration, sale or entry into service of
of Directive

to Article

pursuant

7

vehicles,
70/156/EEC,

(3)

if the vehicles comply with the requirements of Directive
70/220/EEC, as amended by this Directive’.

the European Parliament and of

On 21.12.2005, the Commission adopted a proposal for
a Regulation of
the
Council on type-approval of motor vehicles with
respect to emissions and on access to vehicle repair infor-
mation, amending Directive 72/306/EEC and Directive
…/…/EC (Euro 5 proposal) (3). The proposal reduces
the particulate matter emission limit for diesel vehicles
to 5 milligrams per kilometre. This new limit value will
apply to new types of vehicles of category M and N1,
class I, from 18 months + 1 day after entry into force of
the Regulation and to new vehicles of category M and
N1, class I, from 36 months from the date of entry into
force of the Regulation.

(1) OJ L 350, 28.12.1998, p. 1.
(2) OJ L 42, 23.2.1970, p. 1.

(3) COM(2005) 683 final.

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(4)

(5)

(6)

(7)

lays down limit values

Directive 99/30/EC of the Council of 22 April 1999
relating to limit values for sulphur dioxide, nitrogen
dioxide and oxides of nitrogen, particulate matter and
lead in ambient air (4), which should be
read in
conjunction with Council Directive 96/62/EC of 27
September 1996 on ambient air quality assessment and
management (5),
for concen-
trations in ambient air of PM10, defined as ‘particulate
matter which passes through a size-selective inlet with a
50 % efficiency cut-off at 10 μm aerodynamic diameter’.
In accordance with Article 5 of Directive 99/30/EC, such
limit values have been legally binding since 1 January
2005.
the same
Directive, the annual
limit value for the protection of
human health is 40 μg/m3, while the 24 hour limit
value for the protection of human health is 50 μg/m3,
not to be exceeded more than 35 times in a calendar
year.

In accordance with Annex III of

(8)

According to its explanatory memorandum, the notified
measure does not concern the type-approval procedure.
It would seem that vehicles EC type-approved in another
Member State will not be refused registration by the
Dutch authorities and vehicles complying with the
requirements of Directive 70/220/EEC, as amended by
should continue to be granted
Directive 98/69/EC,
type-approval by the Dutch authorities. However,
the
first time these vehicles go through technical inspection
or whenever they are checked by the police, they will be
found not to be compliant with the notified measure.

(9)

In conclusion, the notified measure imposes a ban on the
use of new vehicles of category N1, class I and M1
emitting more than 5 mg/km of particulate matter, as
from 1 January 2007.

that
Article 7(3) of Directive 96/62/EC stipulates
‘Member States shall draw up action plans indicating
the measures to be taken in the short
term where
there is a risk of the limit values and/or alert thresholds
being exceeded, in order to reduce that risk and to limit
the duration of such an occurrence. Such plans may,
depending on the individual case, provide for measures
to control and, where necessary,
suspend activities,
including motor-vehicle traffic, which contribute to the
limit values being exceeded’.

2. National provision notified

The Kingdom of
the Netherlands has notified the
Commission of a draft decree intended to impose a
mandatory limit value for the emissions of particulate
matter of 5 mg per kilometre on commercial vehicles
with a maximum permissible weight of 1 305 kg (N1
vehicles, class I) and passenger cars (M1 vehicles) as
defined in Article 1.1(h) and 1.1(at) of the Voertuigre-
glement. The decree would apply to all such vehicles first
used after 31 December 2006, which have a diesel
engine. This would imply that these vehicles are fitted
with particulate filters.

(10)

(11)

(12)

II. PROCEDURE

By letter of 2 November 2005, the Kingdom of the
Netherlands notified the Commission,
in accordance
with Article 95(5) of the EC Treaty of its intention to
adopt a draft decree laying down regulations to limit the
emissions of particulate matter by diesel powered
vehicles in derogation of
the provisions of Directive
98/69/EC.

the Commission
By letter of 23 November 2005,
informed the Dutch government
it had received
the notification under Article 95(5) of the EC Treaty
and that
its examination
under Article 95(6) started on 5 November 2005, the
day following the day on which the notification was
received.

the six-month period for

that

By letter of 17 January 2006, the Commission informed
the other Member States of the notification received from
the Kingdom of the Netherlands. The Commission also
published a notice regarding the notification in the
to
Official
inform other interested parties of the national provisions
that
intended to
introduce as well as the grounds invoked to that effect.

the European Union (6)

the Kingdom of

the Netherlands

Journal of

in order

to the

legislation concerning

The measure notified by the Dutch authorities constitutes
the
an amendment
permanent requirements that must be complied with
by vehicles and their component parts throughout their
life (Voertuigreglement). Checks on compliance
useful
are performed
requirements
with these permanent
under
inspection of
vehicles and may be conducted by the police.

the procedure for

the regular

(13)

By letter of 10 March 2006, the Netherlands authorities
informed the Commission of a recent report by the Neth-
erlands Environmental Assessment Agency entitled ‘New
understanding of
the particulate matter
problem’ which shows that levels of PM10 are 10-15 %
lower than previously assumed.

the scale of

(4) OJ L 163, 29.6.1999, p. 41.
(5) OJ L 296, 21.11.1996, p. 55.

(6) OJ C 12, 18.1.2006, p. 5.

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(14)

and
consultants

the Commission asked for

In order to assess the arguments put forward by the
Dutch authorities,
the
scientific
consortium
by TNO (Nederlandse
of
toegepast-natuurwetenschappelijk
Organisatie
onderzoek). The consortium submitted its report to the
Commission on 27 March 2006 (7).

technical
coordinated

advice

voor

of

a

(18) As required by Article 95(5) of the EC Treaty, the Neth-
erlands notified the Commission of the actual wording of
they intend to introduce going
the provisions
beyond those set out
in Directive 70/220/EEC, as
amended by Directive 98/69/EC. The request was accom-
panied by an explanation of the reasons which, in their
opinion, justify the introduction of the provisions.

that

III. LEGAL ASSESSMENT

(19)

1. Consideration of admissibility

a Member State deems

(15) Article 95(5) of the EC Treaty reads as follows: ‘If, after
the adoption by the Council or by the Commission of a
harmonisation measure,
it
necessary to introduce national provisions based on
new scientific evidence relating to the protection of the
environment or the working environment on grounds of
a problem specific to that Member State arising after the
adoption of the harmonisation measure,
it shall notify
the Commission of the envisaged provisions as well as
the grounds for introducing them.’

(16)

for

The notification submitted by the Dutch authorities is
the introduction of
intended to obtain approval
new national provisions which are deemed to be incom-
patible with Directive 70/220/EEC, as amended by
a
This Directive
Directive
measure of
technical
total harmonisation of
requirements for the type approval of motor vehicles
with regard to their emissions.
lays down a limit
value for particulate emissions from diesel cars and
light vans at 25 mg/km.

constitutes
the

98/69/EC.

It

(17) When

of

the

provisions

comparing

particulate matter

of Directive
70/220/EEC, as amended by Directive 98/69/EC, with
the national measures notified by the Dutch authorities
it emerges that the Dutch proposal sets more stringent
requirements for the technical control of motor vehicles
on grounds relating to air pollution by their emissions
than those laid down in the Directive. In particular the
notified measure imposes a mandatory limit value for the
emissions
of 5 mg/km on
commercial
vehicles with a maximum permissible
weight of 1 305 kg (N1 vehicles, class I) and passenger
cars (M1 vehicles), thus preventing the use of vehicles in
these categories complying with the requirements of
Directive
by Directive
as
98/69/EC. It should be noted that the Directive will be
deprived of
if Member States could impose
different requirements on vehicles on grounds relating
to air pollution by their emissions for the purposes of
technical controls. Indeed, an EC type-approval should
remain valid for a number of years and certainly well
beyond the first vehicle inspection. Any other interpre-
tation would enable the Member States to bypass the EC
type-approval system.

70/220/EEC,

its effect

amended

(7) TNO report, 06.OR.VM.013.1/IJR ‘Evaluation of the Dutch request
for derogation to Directive 98/69/EC’, March 27, 2006 (hereinafter
referred to as the TNO report).

for

the

The notification submitted by the Netherlands in order to
obtain approval
introduction of national
provisions derogating from the provisions of Directive
70/220/EEC, as amended by Directive 98/69/EC,
is
therefore to be considered admissible under Article
95(5) of the EC Treaty.

(20)

(21)

(22)

(23)

2. Assessment of merits

In accordance with Article 95 of
the
Commission has to ensure that all the conditions are
fulfilled enabling a Member State to make use of the
possibilities of derogation provided for in this Article.

the EC Treaty,

therefore assess whether

the
The Commission must
the EC
conditions provided for by Article 95(5) of
Treaty are met. This Article requires
that when a
Member State deems it necessary to introduce national
provisions derogating from a harmonisation measure, the
Member State should base it on:

(a) new scientific evidence relating to the protection of
the environment or the working environment;

(b) grounds of a problem specific to that Member State
the harmonisation

the adoption of

arising after
measure.

is

justified,

In addition, pursuant to Article 95(6) of the EC Treaty,
where it considers that the introduction of such national
provisions
the Commission must check
whether or not those national provisions are a means
of arbitrary discrimination or a disguised restriction on
trade between Member States and whether or not they
constitute an obstacle to the functioning of the internal
market.

In accordance with the Court's case law, any exception to
the principle of the uniform application of Community
law and of the unity of the internal market must be
the EC Treaty
strictly interpreted. Article 95(5) of
provides an exception to the principles of uniform appli-
cation of Community law and the unity of the market.
Therefore, it must be interpreted in such a way that its
scope is not extended beyond the cases for which it
formally provides.

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(24)

the EC Treaty,

In the light of the timeframe established by Article 95(6)
of
the Commission, when examining
whether the national measures notified under Article
95(5) are justified, has to take as a basis ‘the grounds’
put forward by the notifying Member State. This means
that, according to the provisions of the EC Treaty, the
responsibility of proving that the national measures are
justified lies with the Member State making the request.
Given the procedural framework established by Article
including in particular a strict
95 of
deadline for a decision to be adopted, the Commission
normally has to limit itself to examining the relevance of
the elements which are submitted by the requesting
Member State, without having itself
to seek possible
reasons or justifications.

the EC Treaty,

(28)

1. Existence of new scientific evidence

(25) According to the Dutch authorities,

their

request

is
justified because new scientific evidence on the environ-
mental and health effects of particulate matter has
become
adoption of Directive
the
98/69/EC. This new information shows that excessive
particulate matter emissions have harmful effects on
human health, such as premature deaths and impaired
lung functions.

available

since

symptoms

and
reductions

obstructive
chronic
respiratory
pulmonary disease,
in lung function in
children and adults, and reduction in life expectancy,
due mainly to cardiopulmonary mortality and probably
to lung cancer.

by

on

that

particles

generated

The Dutch authorities submitted documents showing that
although the health effects of the various sub-fractions
and various sources of particulate matter is not entirely
clear, recent epidemiological and toxicological studies
showed
combustion
processes, such as soot from diesel engines, are parti-
cularly important
in terms of health effects. Primary
combustion derived particles have especially harmful
health
effects
composition
(presence of
transitional metals and reactive organic
compounds) and because of their very small size. Due
to their small size, combustion derived particles have the
to sidestep the human body's protective
potential
mechanisms and penetrate into the blood stream and
various tissues. The Dutch authorities point to the fact
that epidemiological studies on large scale populations
have been unable to identify a threshold concentration
below which ambient particulate matter has no effect on
mortality and morbidity.

because

their

of

(26)

(27)

The documents submitted by the Netherlands in relation
to the new scientific evidence on the environmental and
health effects of particulate matter include national and
international studies, publications and reviews on the
subject. The documents provide
comprehensive
overview of the existing scientific knowledge concerning
the range of health effects linked to exposure to parti-
culate matter that has emerged since the adoption of
Directive 98/69/EC.

a

(29)

that although it

The Dutch authorities consider
is
currently not possible to sufficiently quantify the health
impacts of particulate matter, on grounds of protection
of the health of the Dutch population and on the basis of
the precautionary principle, it is essential to act as swiftly
as possible to reduce by the greatest possible extent
exposure to traffic-generated soot particles.

The Dutch authorities point out that the link between
exposure to airborne particles and a range of health
effects has been proven and emphasised in many
recent scientific publications. The health effects of parti-
culate matter can be divided into those arising from
relatively short periods of exposure (‘acute’) and those
studies
from long-term exposure
submitted by the Netherlands show that although the
health effects of short-term exposure are not negligible,
long-term exposure to airborne particulate matter has
more significant impacts. Effects related to short-term
exposure include:
inflammatory reactions in the lung,
respiratory symptoms, adverse effects on the cardio-
vascular
in medication use,
hospital admissions and mortality. The effects related to
lower
include:
long-term exposure

system and increases

(‘chronic’).

increases

The

in

(30)

(e.g.

In the Dutch authorities’ view, recent scientific studies
show that susceptible population groups are subject to
higher health risks associated with particulate matter.
These groups comprise those who are innately more
susceptible to the effects of exposure to particulate
matter
those with genetic predisposition, very
young children, aged people, people with respiratory
disorders and lung diseases), those who become more
susceptible as a result of
social
factors or personal behaviour and those who are
exposed to unusually large amounts of air pollutants as
a result of living near a main road or spending long
hours outdoors. Due to the fact that in the Netherlands
a large proportion of the population is living in an urban
environment and near busy roads, the Dutch authorities
claim that the health risk related to particle matter for
the population is considerable.

environmental or

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(31)

the environmental and
that
The Commission notes
health effects related to particulate matter concentrations
were already known to a certain extent before the
adoption of Directive 98/69/EC. There was already an
impression that smaller particles had more significant
impacts on health than coarse particles. However, few
studies on this issue were available. Since then, a large
number of new epidemiological studies on many aspects
of exposure and health effects of particulate matter have
to
been completed showing in particular
conclude that
fine particles are more hazardous than
larger ones (8). The availability of such new studies led
the World Health Organisation to produce updates of its
‘Air Quality Guidelines for Europe’ for particulate matter
in 2000, 2003 and 2004 (9).

evidence

(32)

it would appear that the
In the light of the foregoing,
Netherlands has provided new scientific evidence relating
to the protection of
the environment as required by
Article 95(5) of the EC Treaty. This scientific evidence
was not available at the time of adoption of Directive
98/69/EC.

2. Problem specific

to the Netherlands arising after

the

adoption of Directive 98/68/EC

(33)

The Dutch authorities take the view that the Netherlands
is facing a specific problem that has arisen after the
adoption of Directive 98/69/EC. First, they argue that
the Netherlands has been experiencing difficulties for
in complying with
around one and a half years
Directive 99/30/EC. Secondly,
the
number of diesel cars has risen in the Netherlands due
to higher petrol prices, the wider availability of diesel car
models, and the greatly improved performance and fuel
efficiency of diesel engines. Such an increase in the share
of diesel cars was not expected when Directive 98/69/EC
was adopted. The share of diesel cars has risen from up
from below 15 % in 1995 to around 25 % now. All of
these factors have meant that the full extent of the air
quality problem was not realised until after 1998.

they note

that

(34) According to the Dutch authorities, particulate matter is
a cause of major concern in the Netherlands because of
the high population density and a more highly concen-
trated infrastructure than in other European countries.
They take the view that
the Netherlands occupies a
special position in Europe by virtue of its intensive use
of space, with high density of people, cattle, traffic and
industry.
this situation leads to high
emissions per square kilometre. Furthermore, the Dutch
authorities claim that the Netherlands has to cope with a
major amount of pollution from abroad. In particular,

In their view,

(8) ‘Health aspects of Air Pollution with Particulate Matter, Ozone and
Nitrogen Dioxide’, Report on a WHO Working Group, 2003.
(9) Meta-analysis of time-series studies and panel studies of Particulate
matter (PM) and Ozone (O3), WHO Regional office for Europe,
2004.

45 % of the particulate matter concentration in the Neth-
erlands is caused by human activity, of which two thirds
is generated abroad. However, in urban areas, the anthro-
pogenic contribution from sources in the Netherlands is
30-45 %, with traffic being a significant source.

(35)

The Dutch authorities claim that air quality in many
areas of
the Netherlands does not comply with the
European limit values for particulate matter as set out
in Directive 99/30/EC. Though particulate matter
in the Netherlands have declined sharply
emissions
between 1990 and 2003, according to the Dutch autho-
rities, due to the high volume of traffic and the high
concentration of people and buildings in the Netherlands,
this decrease is not enough to combat the negative health
effects of excessive particulate matter emissions and to
implement the European air quality limit values.

(36) According to the Dutch authorities, of

the overall
domestic particulate matter emissions, around a third
comes from traffic, another third from industry and
approximately a quarter from agriculture. Particles from
exhaust gases are among the most harmful of all parti-
culate matter. Traffic subjects people to major exposure,
due to its emissions occurring in close proximity to resi-
dential areas and other sensitive land uses.

(37)

In the documents titled ‘Environmental balance 2005’
(Milieubalans 2005) and ‘Particulate matter: a closer
look’ (Fijn stof nader bekeken) annexed to their notifi-
cation, the Dutch authorities stress that concentrations of
particulate matter in the air exceed European air quality
standards to a considerable extent across wide areas of
the Netherlands. The Dutch authorities note that the daily
air quality limits for particulate matter will still be
exceeded on a large scale in 2010. On the contrary,
breaches of the annually averaged standard for particulate
matter occur hardly at all. The Dutch authorities note
that violations of
laid down in
Directive 99/30/EC have been observed in nearly all
European cities. However,
the violations in the Neth-
erlands, Belgium, the Ruhr district of Germany and the
industrialised area of northern Italy take place over a
larger geographical area than in other Member States.

limit values

the

(38)

The Dutch authorities note that it is impossible to draw
far-reaching conclusions from this information without
considering the exact situation and size of the zones in
the various countries. The Dutch authorities also note
that determination of air quality in the Netherlands
takes place with a high level of detail by employing
detailed planning modelling alongside the prescribed
measurements. However, only a limited number of EU

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L 142/21

It

for example,

countries also use models; most countries on the
contrary, only use measurements of air quality.
is
also possible that
the differences can be
some of
explained by differences in the correction factors used.
increases the measured
The Netherlands,
result by a factor of 1.33. According to the Dutch autho-
rities, a number of countries follow the indications
provided by the European Commission and use a
correction factor of 1.3. Most countries use lower
all.
correction factors or no correction factor
Moreover, not all countries model
their air quality
down to street levels. According to the Dutch authorities,
the number of hotspots in the countries that do not
model
is possibly
underestimated.

their air quality at

the street

level

at

(39)

(40)

(41)

Finally, the Dutch authorities point to their specific legal
situation. The Air Quality Decree, which entered into
force in 2001, has put in place a legal regime whereby
construction and expansion plans can be blocked or
modifications to the plans can be required if these are
likely to have detrimental effects on air quality. Following
the implementation of
regime, more than 40
this
to spatial developments plans have been
objections
lodged with various judicial authorities,
including the
Council of State, due to possible conflicts with the Air
Quality Decree. In one third of these cases, the Council
of State nullified the plan.

The Commission notes that the percentage contribution
of transboundary transport of particulate matter in the
Netherlands is high though not higher than in other
Benelux countries (10). The Commission also notes that
the Netherlands is characterised, in comparison to other
Member States, by considerably higher particulate matter
emissions derived from inland waterway shipping and
maritime transport (11). It should also be noted that the
large port at Rotterdam is not a predominant source of
influence on
particulate matter, but has a significant
activities
in and around the Neth-
erlands (10).

and transport

it

The annual reports under Council Directive 96/62/EC
the Netherlands had no especially high
indicate that
exceedance problems
in 2003 compared to other
Member States (such as Belgium, Austria, Greece, the
Czech Republic, Lithuania, Slovenia and Slovakia). Since
the Netherlands has not submitted official data yet for
2004,
is not possible to compare the air quality
situation in the Netherlands with that in other Member
States in 2004. Moreover, the Commission notes that
the Netherlands Environ-
very recently (March 2006)
mental Assessment Agency NMP has published a re-
evaluation of the PM10 levels, indicating that the levels
of PM10 are 10-15 % lower than previously assumed.
This decrease depends on the location in the Netherlands,
and tends to be larger in rural areas than in cities.
the number of areas
According to the NMP report,

(10) See TNO report, p. 5.
(11) See TNO report, p. 31.

where the air quality limit values will be exceeded will
be halved in 2010 in comparison with 2005 and in
2015 in comparison to 2010.

(42)

Based on the annual reports for 2003 and taking into
account the new information transmitted by the Dutch
government and contained in the NMP report, it would
seem that there is considerable doubt as to the existence
of a specific problem in the Netherlands compared to
other Member States in the compliance with the limit
values
In
particular, the level of total emissions of particles (PM10
and PM2.5) per square kilometre in the Netherlands is
only half of that in Belgium (11).

laid down in the Air Quality Directive.

(43) More specifically, it is doubtful whether there is a specific
problem with regard to Directive 98/69/EC. As stated in
section 40 above, the Netherlands is characterised by
considerably higher
than average particulate matter
emission derived from inland waterway shipping and
maritime
share of diesel
vehicles in the Netherlands is considerably lower (25 %
of new sales) than the EU average (around 50 % of new
sales).
is therefore questionable whether there is a
specific problem with regard to particulate matter
emission derived from motor vehicles
covered by
Directive 98/69/EC.

transport. Moreover,

the

It

(44)

The Commission therefore considers that the Netherlands
has failed to show the existence of a specific problem
with regard to Directive 98/69/EC.

3. Assessment of the conditions under Article 95(6) of the EC

Treaty

(45) Article 95(6) of the EC Treaty obliges the Commission to
the notified national provisions are not a
verify that
means of
a disguised
arbitrary discrimination or
restriction on trade between Member States and that
they do not constitute an obstacle to the functioning
of the internal market.

(46)

of

the

the

aiming at

internal market

The last condition cannot be interpreted in such a way
that it prohibits the approval of any national measure
likely to affect the functioning of the internal market.
In fact, any national measure derogating from a harmo-
and
nisation measure
operation
in
substance a measure that is likely to affect the internal
market. Consequently, to preserve the usefulness of the
procedure for derogation provided for by Article 95 of
the EC Treaty, the Commission considers that,
in the
context of Article 95(6), the concept of obstacle to the
functioning of the internal market has to be understood
as a disproportionate effect in relation to the pursued
objective.

establishment
constitutes

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(47)

the measure is
that
The Dutch authorities consider
necessary to improve the quality of
the environment
and thus protect human health. They also consider that
the draft measure is neither a means of arbitrary discri-
mination nor a disguised restriction on trade between
Member States. Furthermore, they believe that,
in view
of the risks which the emissions of soot particles entail
both for
the environment and human health, and
considering the specific exposure situation in densely
populated regions such as the Netherlands, the measure
is proportionate
to the aim pursued. Furthermore,
according to the Dutch authorities, all models of
vehicles with any significant share in diesel car sales
are already available with particulate traps or will
shortly be available. Thus the notified measure would
not force car manufacturers to make (radical) modifi-
cations to their production process.

(48)

The French and Italian governments have submitted
comments on the Dutch notification within the
deadline. They have both stressed the negative impacts
the notified measure would have on the internal market
for vehicles, by distorting the market. They have pointed
to the possibility for the Dutch authorities to encourage
early uptake of cars meeting the particulate matter
emission level of 5 mg/km by fiscal
incentives, which
would allow for an early implementation of the future
European emission standards while, at the same time, not
hindering the internal market for vehicles.

(51)

(49) As mentioned above (see Section 46), in the context of
Article 95(6) the concept of obstacle to the functioning
of the internal market has to be understood as a dispro-
portionate effect in relation to the pursued objective. The
Commission will therefore focus its assessment of the
conditions under Article 95(6) of the EC Treaty on the
proportionality of the national provisions which have
been notified. Making this assessment will
imply a
judgement on whether the notified measure exceeds the
limits of what is appropriate and necessary to achieve the
stated aim of environmental and health protection. The
assessment will be made on the understanding that,
where there are a number of appropriate measures that
to the least
could be taken,
restricting of them.

the choice should fall

that

(50) As a preliminary remark, the Commission would like to
point out
the necessity to further improve the
performance of vehicles regarding the emissions of atmo-
spheric pollutants is well recognised by the Commission.
This is the reason why, as already mentioned, the Euro 5
proposal has recently been made. According to the
proposal the emission limits for particulate matter from
light-duty
new diesel passenger cars and the smallest

reduce

dramatically

them to adapt

authorities would

vehicles will be reduced by 80 %. In establishing the Euro
5 proposal,
the Commission attempted to strike a
balance between the need for further improvements in
environmental performance and the need to provide car
manufacturers with the necessary time to design vehicles
and plan production activities. This consideration is
reflected in particular in the provisions on the entry
into force of the regulation. By bringing forward the
application of the particulate matter emission limits set
out in the Euro 5 proposal, the measure notified by the
Dutch
the
proposed lead time for
implementation. This would
have a significant impact on vehicle manufacturers, by
obliging
their production to the
requirements of the Dutch legislation or requiring them
to restrict the models offered in the Dutch market. It
should be noted in this regard that, at present, not all
types of vehicles in the categories M1 and N1, class I, are
available with a particulate filter. The Dutch authorities
have informed the Commission that several
types of
diesel passenger cars with diesel particulate filter are
already available or will soon be available in the Dutch
market. However the Commission notes that, on the
basis of the information available to the Commission
(as of December 2005), there are at least 240 different
types of passenger cars out of ca. 710 that are not
available in the Dutch market with a particulate filter
and that therefore would be excluded from that market
the notified measure were adopted. As for some
if
models it is the bigger engines that are equipped with
particulate filters, the Dutch measure could risk excluding
the smaller, more fuel efficient engines of those models
from the Dutch market which would run counter to the
EU’s established policy of limiting CO2 emissions.

The Dutch authorities have informed the Commission
the envisaged measure is part of a package of
that
measures
aimed at
(Budget Day Set of Measures)
improving air quality in the Netherlands. This package
of measures centres on traffic measures since the particles
from exhaust gases are among the most harmful of all
It includes, among other measures,
particulate matter.
subsidies for particulate filter on new and older diesel
incentives for clean local traffic, freight transport
cars,
and shipping,
incentives for clean fuels. Research has
also begun into the cost effectiveness of a subsidy for
scrapping older (diesel) cars. In addition, the package of
measures includes other generic traffic measures and
and agriculture.
measures
Local
covering
measures affecting the national
infrastructure will also
be taken, such as reductions in the maximum speed on
certain roads. Finally, the package of measures also seeks
to take action at local level, such as through the imple-
mentation of municipal air quality plans, additional
money to encourage less polluting local
in
municipalities and provinces and a measure based on
reimbursing a substantial proportion of the additional
costs of low-pollution technologies such as particulate
traps. Alongside that, there is support for municipalities
limiting access to (inner) cities to low-polluting or silent
vehicles.

transport

industry

30.5.2006

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Official Journal of the European Union

L 142/23

(52)

(53)

The Dutch authorities have provided an overview of all
the measures they intend to put
in place with an
assessment of the related costs and benefits. It has to
be noted that some of the envisaged measures which
the Budget Day Set of Measures are
form part of
qualified as ‘hard measures’, others as ‘soft measures’.
The ‘hard measures’ are concrete actions
that have
been
already
arranged and they fall under the competence of
the
Central Government. Soft measures will be decided
later or by other institutions (such as the European
Union),
the instrument and financing is often not
defined or the competences do not lie with the Central
Government.

been specified,

financing has

their

to assess whether

In order
the notified measure is
proportionate to the stated objectives, the Commission
considers that it should be evaluated whether alternative
measures could be taken by the Dutch authorities that
would generate the same benefits in terms of particulate
matter reduction (in particular ultrafine particles), but at
the same time would be less disruptive to the internal
market. The first
implies an
this analysis
evaluation of
the possible benefits that could derive
from the implementation of the notified measure.

step of

(54) According to the Dutch authorities, the implementation
of an obligation to fit particulate traps as of 1 January
2007 on diesel vehicles in the categories M1 and N1,
class I, would generate a particulate matter reduction of
approximately 0.4 to 0.5 kilotonnes (kt) in 2010 which
represents approximately 50 % of the reduction to be
traffic
achieved by the overall Dutch package of
measures. These figures are based on the fact that at
the moment of the notification the proportion of diesel
vehicles with a particulate trap was 10 % of all cars and
on the assumption that the Euro 5 regulation will be
mandatory as of 1 July 2008 at the earliest for new
types of vehicles and as of 1 January 2010 for new
vehicles.

(56)

(57)

(55)

that

filters. The Commission notes

The Commission acknowledges that the Dutch autho-
rities have implemented since 1 June 2005 a fiscal
incentive scheme for fitting new diesel cars with parti-
in the
culate
‘Assessment of
the Budget Day Set of
document
Measures tackling air quality 2005’
(Beoordeling van
het prinsjesdagpakket — Aanpak Luchtkwaliteit 2005),
the Dutch authorities assess the impact of this incentive
scheme. They assume that, as a result of this measure and
assuming that the Euro 5 standard will enter into force at
the earliest on 1 July 2008 for new types of vehicles and
on 1 January 2010 for new vehicles, in 2008 70-90 % of
the new diesel cars sold in the Netherlands will have a
particulate filter. The corresponding figures
the
previous years are 40-60 % for 2006 and 60-80 % for
2007. The Commission therefore concludes that
the
additional benefits of the introduction of the notified
in comparison with a baseline scenario
provisions,

for

where the incentive scheme for new diesel cars is in
force, and taking into account the autonomous trend
in Europe of equipping diesel vehicles with particulate
filters, would be considerably lower than the estimated
benefits of 0,4 to 0,5 kt reduction in particulate matter in
2010. The Commission estimates that the impact would
possibly be in the range of 0,05 kt (12). It should also be
noted that the impact of the existing fiscal
incentives
scheme could be further enhanced by combining this
measure with other complementary measures, such as
selective
accordance with
bans
Community law in defined areas for diesel vehicles not
complying with a certain particulate matter emission
level. The experience of other Member States shows
that often the announcement of such selective bans is
sufficient to influence purchase decisions in favour of a
diesel vehicle with a particulate filter or a non-diesel
vehicle.

circulation

in

the notified measure. However,

The Dutch authorities consider that no other national
measure with a lower impact on trade would have the
the
same result as
Commission notes that in the document ‘Assessment of
the Budget Day Set of Measures tackling air quality 2005’
(Beoordeling van het prinsjesdagpakket — Aanpak
Luchtkwaliteit 2005), the Dutch authorities clearly state
that
there would be alternative more cost-effective
options to the measures considered under the Budget
Day Set of Measures.
In particular, they consider that
the most cost-effective way to lower the concentrations
on a Dutch scale, both regional and local, would be an
additional pricing policy for the transport sector. The
total benefits to society associated with this option
would outweigh the costs. According to the estimations
made by the Dutch authorities, varying the car taxes and
road pricing would reduce the
the introduction of
emissions in 2010 by approximately as much as the
measures proposed under
the Budget Day Set of
Measures. This means that such a policy could deliver
in particulate matter emissions 4 to 10
reductions
times higher than the notified measure (12).

according

and place

The Dutch authorities note that short term benefits asso-
ciated to road pricing varying according to time and
place do not differ significantly from the benefits asso-
ciated to the Budget Day measures. However, the Budget
Day measures score less well as regards the effects on air
quality in 2020. They conclude that while road pricing
the
varying
to time
government more than the Budget Day measures,
it
would generate substantial welfare benefits (EUR 1-1.5
billion per year). Moreover, other social problems such
as noise nuisance, poor traffic safety and congestion
would also be reduced with the implementation of
road pricing.
the
they
the Budget Day measures
measures proposed under
constitute a ‘second best’ solution compared to the
implementation of an additional pricing policy for the
transport sector.

acknowledge

Finally,

costs

that

(12) See TNO report, p. 38.

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Official Journal of the European Union

30.5.2006

(58)

emissions while,

in principle, not

Based on the information provided by the Dutch autho-
rities, the Commission notes that a road pricing policy
for the transport sector appears to be more cost-effective
than the notified measure and would deliver higher
benefits in terms of reduction of ultrafine particulate
matter
creating
obstacles to the functioning of the internal market. The
effectiveness of this measure would be enhanced by its
combination with the existing fiscal
incentives scheme
and could be further enhanced, as mentioned above, if
other complementary measures, such as circulation bans
for older more polluting vehicles, were implemented by
local authorities. The Commission notes that this latter
kind of measures has been effectively and extensively
adopted by local authorities in other Member States
facing air quality problems similar to those experienced
by the Netherlands.

(61)

(59) Moreover, in the Commission’s view, the Dutch autho-
rities could also consider strengthening some of the ‘hard
measures’
included in the Budget Day measures. For
example, retrofitting of diesel vehicles with particulate
filter could lead to higher emission reductions than
those estimated by the Dutch authorities, if the budget
allocated to this measure was increased and if particulate
filters were installed in particular in vehicles with a high
urban mileage (e.g. taxis). The costs of retrofitting ships
with diesel particulate filters are estimated by the Dutch
authorities to be lower than other retrofitting measures
(in a range of EUR 10 to EUR 60 per kg of particulate
matter reduction (13)) and would be lower than the health
costs associated with particulate matter concentrations, as
calculated by the Dutch authorities (i.e. EUR 340 per kg
in urban environment and EUR 80 per kg in rural envir-
onment). It should be noted in this regard that, according
to the projections from the RAINS models, while the
relative importance of particulate emissions from light-
the
duty vehicles will decrease in the next years,
importance of the emissions from inland shipping and
maritime transport is going to increase.

the notified measure (0,05 kt, see
implementation of
section 55 above). This measure would probably have a
bigger effect on less populated areas than in the cities.
However, given the expected order of magnitude of
reduction of the background concentration of particulate
matter, and its
the
protection of public health, it would probably be worth
considering earlier implementation.

in terms of

favourable

effect

the

that

vehicles,

system for

clearly indicate

The Commission considers that the information provided
by the Dutch authorities
less
restrictive measures than the notified measure could be
taken by the Dutch authorities to reach the stated
objectives of environment and health protection. While
the notified measure would constitute a breach of the EC
type-approval
alternative
measures would not,
imply a derogation
in principle,
to existing EC harmonisation measures. The reasons
why such measures have not been finally proposed,
even though contemplated by the Dutch authorities
and despite the fact that they could yield at least the
same amount of particulate matter reduction than the
notified measure, do not clearly emerge from the
The
documents
by
Commission would like to stress in this respect
that
among the different options capable of reaching the
pursued
environmental
protection, Member States are obliged to choose those
which are less disruptive to the internal market.

the Netherlands.

submitted

objective

health

and

of

(62)

the Commission believes that

there is
In conclusion,
evidence indicating that the envisaged national measure
is not the least restrictive measure to achieve the stated
aim of environmental and health protection and that,
once adopted,
it will constitute a disproportionate
obstacle to the functioning of the internal market.

(60)

The Dutch authorities could also consider an earlier
implementation of some of the ‘soft measures’ included
in the Budget Day measures falling under the competence
of the Dutch government. In this context, it is noted that
the estimated particulate matter reduction potential of
the total package of ‘soft measures’ of the Budget day
is higher than that of the ‘hard measures’. In
proposal
particular, according to the estimation from the Dutch
authorities, the introduction of combined ‘air washing
systems’ in intensive stock farming would yield a parti-
culate matter reduction in 2010 of 4.4 kt. This reduction
is considerably higher
than the expected particulate
reduction which would be generated by the
matter

(13) See TNO report, p. 41.

(63)

4. International context

of

the

about

context

international

The Commission would like to set out some consid-
erations
the
envisaged measure. By Council 97/836/EC Decision of
27 November 1997 with a view to accession by the
European Community to the Agreement of the United
Nations Economic Commission for Europe concerning
the adoption of uniform technical prescriptions
for
wheeled vehicles, equipment and parts which can be
fitted to and/or be used on wheeled vehicles and the
approvals
conditions

recognition of

reciprocal

for

30.5.2006

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Official Journal of the European Union

L 142/25

under

Regulation

granted on the basis of these prescriptions (‘Revised 1958
Agreement’) (14),
the European Community acceded to
83 (15)
UN/ECE
the
adopted
Agreement of the United Nations Economic Commission
for Europe concerning the adoption of uniform technical
prescriptions for wheeled vehicles, equipment and parts
which can be fitted to and/or be used on wheeled
vehicles and the conditions for reciprocal recognition
of approvals granted on the basis of these prescriptions
(‘Revised 1958 Agreement’). This Regulation sets the
same emission limit values and has the same scope of
application as Directive 70/220/EC, as lastly amended by
Directive 98/69/EC. According to Article 3 of the 1958
‘Wheeled vehicles, equipment or parts for
Agreement,
which type approvals have been issued by a Contracting
Party in accordance with Article 2 of this Agreement and
manufactured either in the territory of a Contracting
Party applying the Regulation concerned, or in such
other country as is designated by the Contracting Party
which has duly approved the types of wheeled vehicles,
equipment or parts concerned shall be held to be in
conformity with the legislation of all the Contracting
Parties applying the
said Regulation through type-
approval’.

(64)

the

The measure notified by the Dutch authorities does not
contain any provision allowing the use of vehicles for
which type-approvals have been issued in accordance
with UN/ECE Regulation 83. Thus, the measure would
prevent vehicles from other Contracting Parties that fulfil
the requirements of Regulation 83 from entering the
Dutch market. If adopted, the measure would therefore
the 1958 Agreement.
constitute an infringement of
Justice,
Following
Community law has
far as
in conformity with the Community’s interna-
possible,
tional obligations. Thus,
to
ensure that the Community fulfils its obligations under
the 1958 Agreement. This implies that the Netherlands
has to comply with UN/ECE Regulation 83. Failure to do
so could undermine the recognition of EU type-approvals
by the other Contracting Parties and would thus have
repercussions on the EC’s
clearly disproportionate
vehicle exports to those countries.

the Court of
as
interpreted,

case-law of
to be

the Commission needs

national measures notified, and in light of the consid-
erations set out above, the Commission considers that
the request of the Kingdom of the Netherlands for intro-
ducing national provisions derogating from Directive
98/69/EC, submitted on 2 November 2005:

— is admissible,

— does not fulfil all the conditions set out in Article 95
of the EC Treaty. The Netherlands has failed to prove
the existence of a specific problem with regard to
Directive 98/69/EC. Even if it was admitted that the
Netherlands has proved the existence of a specific
problem with regard to Directive 98/69/EC the
Commission considers that the notified measure is
not proportionate to the objectives pursued.

(66)

The Commission therefore has grounds to consider that
the national provisions notified cannot be approved in
accordance with Article 95 (6) of the EC Treaty,

HAS ADOPTED THIS DECISION:

Article 1

The national provisions imposing a mandatory limit value for
the emissions of particulate matter of 5 mg per kilometre on
commercial vehicles with a maximum permissible weight of
1 305 kg (N1 vehicles, class
(M1
vehicles) notified by the Kingdom of the Netherlands pursuant
to Article 95(5) of the EC Treaty are rejected.

I) and passenger cars

Article 2

This Decision is addressed to the Kingdom of the Netherlands.

Done at Brussels, 3 May 2006.

IV. CONCLUSION

(65)

In light of the elements which it had available to assess
the
the justifications put
the merits of

forward for

For the Commission

Günter VERHEUGEN
Vice-President

(14) OJ L 346, 17.12.1997, p. 78.
(15) UN/ECE Regulation 83 on ‘Uniform provisions concerning the
approval of vehicles with regard to the emission of pollutants
according to engine fuel requirements’.