All eyes on Leipzig: Decisions on diesel bans expected in 2018

The air is polluted in many German cities. Nitric oxide from diesel-powered vehicles is considered to be one of the main sources of emissions. Whether a driving ban against such diesel-powered vehicles is possible in individual cities is the subject of legal proceedings at the Federal Administrative Court in Leipzig. If this occurs in 2018, this will affect all: municipalities, car drivers, manufacturers, and public transportation.

82 mµ/m³ of nitrogen dioxide (NO2) emissions at Stuttgart's busiest intersection, the Neckartor were more than twice as high as the legal limit last year. Altogether, there are more than 40 German cities, including Stuttgart, Munich, Hamburg, Düsseldorf, and Berlin, which have to do something about the poor nitrogen dioxide readings, otherwise they will face high EU fines. As a remedy for clean air, not least since the diesel affair, a local ban on diesel-powered vehicles is being discussed. Who may regulate such a prohibition – the authorities of individual states or cities or only the federal government – is currently being negotiated for Düsseldorf and Stuttgart at the Federal Administrative Court.

If the Federal Administrative Court arrives at the conclusion that states and cities may impose their own traffic bans, a ban on hundreds of thousands of diesel-engine drivers in Germany may be imposed at very short notice. In Stuttgart alone, more than 200,000 trips would be affected every day if only diesel-powered passenger cars with the latest Euro 6 emissions standard were allowed to drive in city centers from the beginning of 2018, but vehicles with older emissions standards would no longer be allowed to do so. Such a decision would, of course, affect all of Germany, with consequences not only for the relevant drivers: In cities with driving bans, congestion of public transport could follow when tens of thousands of diesel-engine drivers would have to change to buses and trains “overnight.” And if they switched to gasoline cars instead, this would worsen the traffic CO2 balance: Gas engines still consume more fuel and therefore emit more CO2 than diesel.

Hundreds of thousands of diesel-engine drivers would be affected by a short-term ban: There are almost 6 million Euro 5 diesel engines in Germany alone. Depending on how the affected parties react to the ban, this threatens to overburden local public transport and/or result in a deterioration of the CO2 balance.

Apart from this, there are also solid legal dogmatic arguments in favor of  a rejection of states' and cities’ own driving bans in Leipzig and instead a decision in favor of a uniform regulation at federal level. There is already the federal sticker regulation in effect. Although this has proved to be inefficient, even diesel-powered cars that comply with the poor Euro 3 emissions standard receive the best green sticker under certain conditions. Thus, the air in the cities is far too bad despite the green sticker. According to the states of North Rhine-Westphalia and Baden-Württemberg, which are defendants in the pending proceedings before the Federal Administrative Court, this federal regulation has a blocking effect on states and municipalities, however: the legislature wanted to prevent each state from adopting its own driving ban regulation by means of the nationwide sticker regulation. This means that the strictest sticker should allow drivers to enter city centers everywhere in Germany. 

If the federal government introduced a new, stricter sticker, which entitles drivers to enter city centers, this would have a further advantage over states' and cities’ own driving bans, which only follow the exhaust emission standard: the federal government could design this new sticker flexibly, for example by providing it not only to Euro 6 diesel but also Euro 5 diesel-powered vehicles, if they reduce their emissions by means of software or hardware upgrades. Or by providing for an appropriate transitional period for the new sticker for such Euro 5 diesel-powered engines: After all, until August 2015, Euro 5 was still the strictest exhaust emission standard, i.e., vehicles that are only two and a half years old would also be affected by a driving ban in individual cities from the beginning of 2018 – the economic damage that a driving ban were to cause to drivers would be correspondingly high. This is therefore also an argument against a separate ban on diesel-powered vehicles in individual states or cities and for uniform regulation at federal level by means of a new, stricter (blue) sticker in the future.

Either way, a ban on diesel-powered vehicles would have an impact on everyday life and the mobility of many people, no matter how it is designed at the end of the day. Car manufacturers and owners as well as local public transportation companies would do well to adapt to the changed framework conditions.

Your contact for questions about the driving ban is Dr. Wolfram Sandner. His team is working in the field of environmental and immission control law. In the Stuttgart case, Dr. Wolfram Sandner, Partner at the Stuttgart office, represents the defendant state of Baden-Württemberg. A decision is expected in February 2018, at least for Düsseldorf.