Clean implementation of the Clean Vehicle Directive?

Category: compliance, contract law Industry: mobility Author: Year:
Daniel Wuhrmann

Background of the legislation

When Directive 2019/1161/EU took effect on 1 August 2019, the content of the original statute, Directive 2009/33/EC, was thoroughly revised (the consolidated version of Directive 2009/33/EC "on the promotion of clean road transport vehicles in support of low-emission mobility" can be found here). The EU member states are required to implement Directives into national law within a two-year period. With time growing short, the German government has now published a bill (PDF only in German) for a "Clean Road Transport Vehicle Procurement Act." 

Implementation in need of revision

The goal of the Directive is to promote demand for low- and zero-emissions road vehicles in public contracts and the Directive requires public agencies to set an example for the private sector in this regard.

The new bill is largely based on the EU Directive. However, vehicles which are needed to perform tasks relating to public order and safety are almost entirely excluded from the scope of the bill. It is doubtful that such a practice would set a good example for the private sector. VDV, the Association of German Transport Companies, has criticized the bill, noting that its requirements fall heaviest upon buses used in public transportation, "even though these are by far the cleanest and most eco-friendly local transportation and mobility option available today." VDV also states that higher procurement costs will likely be passed on to passengers in the form of price increases, so that the effect of the statute would run counter to its actual purpose.

Substantial criticism has been directed in particular at the "core implementation provisions" in Sections 5 and 6 of the bill. The EU has defined minimum targets for the procurement and use of certain "clean" heavy-duty vehicles in competitive and public procurement procedures over two reference periods (2021-2025 and 2026-2030). A point of dispute involves the Recitals to the Directive, which state that the implementation of national minimum procurement targets should focus in particular on areas with high levels of air and noise pollution. In the German government's view, the individual Federal States should determine their quotas independently. However, there is currently a discussion as to whether an industry register should be set up instead (only in German). This register would provide an "overview of procurement plans, orders and past procurement actions," enabling coordination between local requirements and the national quota.

Outlook

Key aspects of the bill are currently under discussion, so that it is not yet clear precisely what it will look like. However, it is certain that the EU Directive will be implemented into German law. From a legal viewpoint, it will be interesting to see how the new requirements will affect other areas, such as public contract law and supply-chain contracts, as well as the interaction between these requirements and the implementation of ambitious infrastructure projects (such as the proposed Fast-Charging Infrastructure Act).

[Februray 2021]