The European Commission fulfilled an overdue promise on Thursday (8 December) by taking legal action against EU member states that have not done enough to deter or punish carmakers for cheating on emissions tests.

The commission has sent a so-called letter of formal notice to seven member states, which have two months to reply.

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Bienkowska: national authorities 'must ensure that car manufacturers actually comply with the law'. (Photo: European Commission)

If the commission remains unsatisfied, it can continue in the infringement procedure, which could end up at the Court of Justice of the EU, and eventually lead to fines for the member states.

However, it is unclear why some countries are targeted, but others are not.

The commission has targeted seven EU member states: the Czech Republic, Germany, Greece, Lithuania, Luxembourg, Spain and the United Kingdom.

“Abiding by the law is first and foremost the duty of car manufacturers,” said EU industry commissioner Elzbieta Bienkowska in a press release.

“But national authorities across the EU must ensure that car manufacturers actually comply with the law.”

The commission said that Germany, Luxembourg, Spain and the UK failed to penalise Volkswagen Group (VW) for the use of illegal emissions cheating software.

These four countries had issued certificates to diesel cars which turned out to have illegal defeat devices - a fact that was made public in September 2015.

Only the country where a car certificate, or type approval, was issued, can take action against a cheating car company.

So far, however, VW has not been criminally prosecuted for using defeat devices.

Recall is also 'a penalty'

At a recent hearing in the European Parliament, Ekhard Zinke, the president of the German Federal Motor Transport Authority said recalls were penalty enough.

“I regard it as a penalty if a manufacturer is told that they can no longer trade particular products on the market in their present form,” said Zinke.

Germany and the UK also “broke the law by refusing to disclose, when requested by the commission, all the technical information gathered in their national investigations” undertaken after the VW scandal became public.

Both countries had published a report in April which showed that many carmakers used defeat devices, but the authors of the reports said that carmakers cited an exemption in the legislation.

The commission wants to double-check the carmakers' story, and not take their claim that the use of defeat devices was legal, at face value.

Why Lithuania and not Denmark?

The commission is also targeting Czech Republic, Lithuania and Greece for not having implemented any penalties for the use of defeat devices.

According to rules agreed by all member states in 2007, national governments would lay down “effective, proportionate and dissuasive penalties” to deter the use of cheating software.

The three countries “failed to introduce such penalties systems into their national law”.

But the choice of these three countries is unclear.

The penalty Lithuania has put in place is withdrawal of the type approval, but no fine, which one could argue is not “effective, proportionate and dissuasive penalties”.

But Denmark also does not have any fines in place. It is not clear why the Nordic country is not targeted.

Also, the inclusion of the Czech Republic is notable.

According to a European Commission staff working document, published last January, the Czech Republic had the highest theoretical fine available to emissions cheaters: €1.85 million.

However, a commission source said that this potential penalty relates to the general legislation on type approvals, and not to emissions cheating specifically.

“The commission considers the provisions put into place to be insufficient,” the contact said.

A second EU commission official told EUobserver that the commission is still gathering information from 14 member states about their penalties systems, including Denmark, Italy and France.

Thursday's step had been promised by commissioner Bienkowska, who had previously told MEPs the commission would “definitely” take legal action before the end of October.

Missed opportunity in 2013

Commission spokeswoman Lucia Caudet told journalists on Thursday that the Commission could not have taken legal action sooner, because the commission “in the spirit of good cooperation” first wanted to engage in a dialogue with member states.

“When we really consider that the level of response is not satisfactory, then we take legal action. But it is not something which can be done in a more rushed manner,” she said.

The EU commission had the opportunity to take legal action against member states in 2013, when the executive was led by Jose Manuel Barroso.

The commission had asked member states whether they had implemented the penalty provisions, and received responses from 18 member states, including three countries now targeted: Lithuania, Spain, and the UK.

But the commission then did not decide to follow-up, nor did it pressure the other countries that had failed to reply to the commission's request.