Decided to end combustion engines: but no legal certainty for e-fuels despite agreement

The dispute with the EU Commission about the end of combustion engines in 2035 has been settled, Transport Minister Wissing wants to have his way: The way for vehicles powered by e-fuels is clear, he announced.

The negotiated compromise offers little more certainty than before the FDP's no.

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first published it

on March 27, 2023. 

In the dispute over the end of combustion engines, the FDP always demanded legal certainty that "e-fuels only” vehicles can also be registered after 2035.

There was a corresponding requirement in a recital of the tightened EU fleet limits, which set CO₂ reduction targets for car manufacturers.

However, Climate Commissioner Frans Timmermans had already emphasized in June last year that it is up to the Commission whether or not to present such a proposal.

That wasn't enough for the FDP, which is why they rehearsed the uprising.

However, even the agreement reached at the weekend does not create the legal certainty demanded by Federal Transport Minister Volker Wissing.

MEPs from the SPD, CDU and Greens are already expressing serious doubts that the compromise between Wissing and Timmermans can be put into practice.

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No legal basis for delegated act

According to the Federal Ministry of Transport, the agreement states: The text of the trilogue agreement is accepted unchanged.

With an implementing act within the Euro 6 type approval, the EU Commission is creating a new vehicle category for combustion engines that can only be fueled with synthetic fuels.

The Commission is then to integrate this vehicle category into fleet regulation via a delegated act.

The last step would mean that manufacturers of "e-fuels only" cars can count them towards achieving their CO₂ reduction targets.

But the Commission may not have the legal basis for a delegated act.

The co-legislators European Parliament and Council must allow the Commission to clarify certain details of a law via delegated acts.

In the case of the law banning combustion engines, this permission is missing in the current text.

EU parliamentarians like Michael Bloss (Greens) have therefore already announced the legal review and, if necessary, a lawsuit before the European Court of Justice if the delegated legal act comes.

The CDU MP Peter Liese does not think much of a combustion engine off, but doubts the legality of the construct: "Nine out of ten lawyers will say that this is not possible," he told Table.Media.

The delegated legal act could therefore be cashed in by the ECJ.

Liese says that the Commission itself also assumes that the whole thing is not legally certain.

Alternative: Ordinary legislative procedure

In this case, the Commission and the Federal Ministry of Transport have agreed that instead of a delegated legal act, there should be an ordinary revision of the EU fleet regulation.

This would give Parliament and the Member States a say.

Both co-legislators would therefore be able to prevent an exception for e-fuels from the combustion engine end.

In addition, this process takes time and is unlikely to be completed before the European elections in spring 2024.

The Ministry of Transport itself assumes autumn 2024.

However, the Commission's commitment to integrating "e-fuels only" cars into fleet regulation via a proper legislative procedure, if necessary, is not legally binding, says Bloss.

The next EU Commission does not have to stick to it.

In any case, the current text of the law already stipulates a review of the law for 2026.

The extent to which the law will then be revised is up to the next EU Commission and the next EU Parliament, as well as the member states.

The bottom line is that Wissing has wrested a clearer declaration of intent from Timmermans than before, but there is no guarantee that combustion engines can still be approved after 2035 - with or without e-fuels.

One thing is certain: the blockade of the FDP has been resolved.

EU ambassadors will schedule a new vote earlier this week to allow for formal adoption at ministerial level at the Energy Council on Tuesday (28 March).

By Luke Scheid

List of rubrics: © Julian Weber / dpa