Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Transport Committee
Commission Delegated Regulation (EU) /... of XXX supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the deployment of and operation use of cooperative intelligent transport systems.
Articles 6 and 7 of Directive 2010/40/EU (the Intelligent Transport Systems Directive); —
6.2The ITS Directive is described by the Commission as providing a legal and policy framework for the accelerated deployment of intelligent transport solutions across Europe. The Directive focuses, in particular, on intelligent transport systems for road. The ITS Directive defines intelligent transport systems as:
… advanced applications which without embodying intelligence as such aim to provide innovative services relating to different modes of transport and traffic management and enabled various users to be better informed and make safe, more coordinated and ‘smarter’ use of transport networks.
6.3At the level of the end user, intelligent transport systems are currently deployed across developed economies in various forms. Examples include the EU’s ‘eCall’ initiative (which requires new cars to be fitted with approved products that automatically contact emergency services—via voice and data cellular connection—in the event of a serious accident), automatic road enforcement technologies (e.g. red-light cameras), variable speed limit and dynamic traffic light systems, and vehicle and infrastructure collision avoidance technologies.
6.4The proposed delegated act would provide a legal basis for the deployment of ‘cooperative’ intelligent transport systems in Europe. Cooperative intelligent transport systems (or C-ITS) enable vehicles to interact directly with each other and surrounding road infrastructure. To date, C-ITS has seen fruition in applications that warn motorists of oncoming traffic at right turns, alert pedestrians to approaching cars and provide drivers with real-time information of accidents on route to their destination. These technologies—and others—fall into four main C-ITS categories: ‘vehicle-to-vehicle’ (V2V), ‘vehicle-to-infrastructure’ (V2I), ‘infrastructure-to-infrastructure’ (I2I) and ‘vehicle-to-everything’ (V2X).
6.5According to the Commission, the benefits of C-ITS span a range of areas and include improved road safety, reduced congestion and greater transport efficiency. The Commission argues that in order to reap the full benefits of C-ITS—and to avoid potential negative effects—regulation is needed. The delegated act under consideration would introduce legal requirements at EU-level covering C-ITS interoperability (to ensure everybody—cars and infrastructure—is able to ‘talk’ to everybody) and compatibility (to ensure everybody remains able to talk to everybody). Without action, the Commission suggest that the deployment of C-ITS would “remain fragmented, uncoordinated and incapable of ensuring the geographical continuity of C-ITS services throughout the EU and its external borders”.
6.6The envisaged delegated act is focussed on so-called ‘day-1’ services (those to be deployed in the short term that are focussed on road safety and traffic efficiency). The legal framework provided by the proposal would set: standards and specifications for communication technologies employed in new C-ITS applications (i.e. V2V, V2I, I2I and V2X); security and privacy criteria; and introduce conformity assessment procedures (which would have to be followed for C-ITS products to be placed on the market).
6.7The communication standards and specifications proposed for C-ITS applications have received a significant amount of attention from stakeholders. By way of analogy, this part of the proposal covers the ‘language’ that, for example, cars and road-side infrastructure would use to ‘talk’ to each other. The Commission has suggested that for short-range communications—those used for time-critical services—a standard known as ITS-G5 should be used. ITS-G5 is best understood as a Wi-Fi-based technology (which is commonly used for the transmission of wireless internet for home and commercial purposes). For longer-range communications—specifically for less time-critical V2I services—the Commission is proposing to designate cellular 3G and 4G technologies (those used by mobile telephones to make calls and transmit data).
6.8This choice—of Wi-Fi for one set of communications and 3G/4G for another—has caused considerable disquiet amongst industry groups, specifically, those representing cellular network service providers and equipment manufacturers. This is because the Commission’s proposal omits to include LTE-V2X—a cellular-based short-range communications technology—and 5G (the latest generation of cellular mobile communications technologies). Although only recently new to market and not yet commercially available, 5G is capable of being used for both short-range and long-range C-ITS applications. The Commission justifies the omission of LTE-V2X and 5G on the basis that neither have reached sufficient levels of maturity and commercialisation to warrant inclusion.
6.9With this in mind, a review clause is provided at Article 33 of the proposal to facilitate the inclusion and approval of new technologies such as LTE-V2X. Industry groups, however, have expressed concerns that the envisaged review process would be slow and subject to the politics of stakeholder participants. It is worth noting that participation in the CIT-S ‘Experts Group’—who would have an influence on such decisions—is restricted to representatives who fall within the scope of the draft Regulation, in effect, excluding LTE-V2X and 5G interest groups.
6.10The Commission’s approach to selecting communication standards/specifications has been questioned by cellular service providers/equipment suppliers and car manufacturers. They point to the Commission’s commitment—made prior to the publication of the draft delegated act—to technology neutrality, open competition and ensuring a future-proof approach towards the development of C-ITS. In its present form, the Commission’s proposal freezes-out LTE-V2X and 5G in favour of a mix of ITS-G5 and 3G/4G technology. Stakeholders argue that LTE-V2X is market-ready and, moreover, provides a bridge to the adoption of next generation, 5G-based, technologies.
6.11Concerns have also been raised that the Commission’s interoperability requirements would require LTE-V2X and 5G-based technologies to be compatible with those utilising ITS-G5. As currently drafted, a ‘mutual’ interoperability obligation is not placed on ITS-G5. In other words, ITS-G5 applications will not have to ensure compatibility with LTE-V2X or 5G. A well-supported view forwarded by the 5GAA automobile alliance—a cross-industry organisation representing automotive, technology and telecommunications companies—is that such an approach would result in technology and industry lock-in; stifling competition. Without a full impact assessment, which the Commission has not provided, it is difficult to test this and other opinions fully.
6.12From a legal perspective, the understanding of ‘interoperability’ advanced by the Commission is somewhat limited; especially when considered in light of its definition in the ITS Directive. In accordance with Article 4(2) of the Directive, interoperability is defined as “… the capacity of systems and… underlying business processes to exchange data and to share information and knowledge”. This definition is not restricted to communication technologies and, as such, can be viewed as extending to other situations, however, the Commission’s explanatory memorandum focuses almost exclusively on the perceived difficulties of reconciling ITS-G5 with LTE-V2X and 5G. A prime example is the definition of interoperability forwarded in section 3.3 as “the need to ensure that everybody is able to talk to everybody”. Against the ITS Directive definition, interoperability would include scenarios where, for example, some users have enabled C-ITS and others have not. Such incomplete uptake would not be due to competing communication protocols but rather a choice on the behalf of some road users not to participate. This consideration and, moreover, whether the Commission wishes to mandate the use of C-ITS for enabled vehicles/applications, is not addressed.
6.14The Commission’s proposal is also unclear on the approach that will be adopted toward the protection of C-ITS users’ privacy. In its fundamental rights analysis, the Commission refers to the Article 29 working party established under the Data Protection Directive and their opinion of October 2017 (on the lawful processing of personal data in the filed C-ITS). In its opinion, the Article 29 working party suggested that “in any of the selected legal bases, the default setting of all installed C-ITS functionality must be switched off”. This is not mentioned in the explanatory memorandum nor is provision made in the draft delegated act requiring vehicle-based C-ITS equipment to be disabled by default. On a linked point, Recital 29 of the draft act notes that the European Data Protection Supervisor has been consulted but fails to provide the date on which they issued an opinion (which it appears they have not).
6.15Further substantive questions also remain as to the security and homologation arrangements proposed under the act. With regard to security, the delegated Regulation puts in place measures to ensure the authenticity and integrity of messages exchanged between C-ITS stations (e.g. vehicles and road-side infrastructure). Under Chapter V of the proposal, the Commission is to assume a number of security-related responsibilities—such as managing the authorisation of security certificates—until such a time as a dedicated entity can be established. No further information is provided on the timeframe or process for the creation of such bodies. The same is also true of the body that will be responsible for homologation—or approval—of C-ITS stations (as per Recital 15 to the Regulation).
6.16Minister of State at the Department for Transport (Jesse Norman MP), wrote to the Committee—on the proposal under scrutiny—by way of Explanatory Memorandum on 29 January 2019. This was after Committee staff requested officials at the Department for Transport ensured it was deposited. The Minister appears to be broadly supportive of the proposal, however, no explicit endorsement is provided. In terms of the potential implications of the proposal for UK transport law and policy, the Minister provides a somewhat limited assessment. He does state, however, that due to the limited rollout of C-ITS on the UK’s strategic road network work, the immediate financial implications of ensuring conformity with the Regulation are limited. This may be the case but the future deployment of C-ITS will have significant financial implications for Government agencies such as Highways England. The potential costs of the proposal should, therefore, not be underestimated.
6.17With regard to the UK’s pending withdrawal from the EU, the Minister states that:
If [the] proposed Delegated Regulation does not, or may not, apply to the UK, the implications are that UK C-ITS deployments may not comply with its requirements and therefore may not be interoperable with the European deployments. This could slow down the deployment of C-ITS in the UK if no action was taken.
This appears to point towards the possibility of the UK ‘mirroring’—or at least providing for—C-ITS standards and specifications set by the EU irrespective of whether the draft Withdrawal Agreement is ratified. Given the short timeframe proposed for the adoption of the act (and its application date of 31 December 2019), if the draft Withdrawal Agreement is ratified, the Regulation will be binding on the UK.
6.18It is not clear, however, how the act would be given effect to. This is because the Government has laid a statutory instrument (SI) under Section 8(1) of the (EUWA) to revoke all Decisions, Implementing Decisions and Delegated Regulations made under the ITS Directive. The Explanatory Memorandum to the Intelligent Transport Systems (EU Exit) Regulations 2018 justifies this revocation on the basis that the obligations these acts give rise to can “continue to be met by administrative measures”. As highlighted by the Secondary Legislation Scrutiny Committee such measures are yet to be developed. Consequently, the Committee recommended that the SI be subject to the affirmative resolution procedure.
6.19It is unclear why the Government would choose to revoke these acts only to give effect to them via alternative means. Furthermore, uncertainly exists as to whether they will be given effect to in their entirety—as they are currently—or whether only parts will be retained. This situation could have major implications for businesses and individuals. One of the guiding principles of the EUWA was to provide legal certainty; something the Government’s SI potentially undermines. A question therefore arises as to how, if agreed, and the UK enters into a transitionary period with the EU, the proposal will be given effect to domestically.
6.20We thank the Minister for his Explanatory Memorandum of 29 January 2019. The Committee seeks the Government’s views and opinions on a number of issues relating to the substance of the proposal and, in light of recent domestic legislative developments, its plans, if adopted, for implementation.
6.21The Committee seeks the Government’s view on whether the proposed Directive is necessary. The Commission has explained that without legal regulation of C-ITS—in order to set standards and specifications—deployments would “remain fragmented, uncoordinated and incapable of ensuring the geographical continuity of C-ITS services throughout the EU and its external borders”. On the other hand, stakeholders such as PSA Groupe have argued that given the rapid development of C-ITS and, in particular, that of associated communications technologies, regulation should be considered carefully.
6.22On a linked point, if regulation is deemed necessary, we seek the Government’s views on the legal act suggested. There are clear limits inherent in the use of delegated acts, including, but not limited to, the short timeframe for adoption, the restricted involvement of Member States and, by extension, the ability of stakeholders to make representations to lawmakers. At first blush, this process does not appear appropriate for a measure that would set the standards against which road transport will be required to operate in the future.
6.23On the substance of the proposal, we ask the Government to outline its position on the following issues:
6.24We recognise the concerns raised by the Government regarding the lack of clarity in the Commission’s security and homologation proposals, in particular, relating to the timeframe and processes suggested for establishing responsible bodies. We therefore request that the Government keep the Committee updated regarding developments in both of these areas.
6.25Turning to recent legislative developments, we seek clarity on the Government’s plans, if adopted, for the implementation of the proposal. This is in light of its intention to revoke all existing legislative acts made under the ITS Directive—via section 8(1) of the EU (Withdrawal) Act 2018—and to give each effect via “administrative measures”. We ask, therefore, whether, in the event of the draft Withdrawal Agreement being ratified, the proposed Regulation will be given effect to by way of the ITS Directive. If this is not the Government’s plan, we request further information on how the proposal will be given effect to. We are interested, in particular, in the “administrative measures” that would be utilised and whether the Regulation would be given effect to in full and, if it not, which parts would be omitted and why.
6.26We note the Minister’s mention of the national C-ITS pilot—the A2/M2 London to Dover Connected Vehicle Corridor—in his Explanatory Memorandum. We request a summary of those parts of the UK’s strategic road network that currently support—whether at trial stage or otherwise—C-ITS technology and, furthermore, any future plans for its deployment.
6.27Pending satisfactory answers to the questions raised above and our requests for further information being adequately met, we retain the proposal under scrutiny. Given the suggested timeframe for the adoption of the proposed act, we request a response to our enquiries by 20 March 2019.
6.28We draw this report to the attention of the Transport Committee.
Commission Delegated Regulation (EU) /... of XXX supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the deployment of and operation use of cooperative intelligent transport systems: (40329), Unnumbered.
36 of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport.
37 Recital 3 to the ITS Directive.
38 See European Commission, . (accessed 15 February 2019).
39 Section 2.2 of the explanatory memorandum accompanying the Commission’s proposal.
40 By way of example, see 5GAA, (January 2019).
41 ibid pp 3.
42 See, for example, PSA Groupe, (February 2019) pp 1.
43 See 5GAA (n 5) pp 3.
44 By way of example, see Vodafone, (February 2019) pp 9.
45 See (n 5) pp 2.
46 Article 29 Data Protection Working, (October 2017) pp 13.
47 The Regulation will not be subject to the exemptions to the applicability of EU law provided for in Article 127(6) of the draft Withdrawal Agreement.
50 Secondary Legislation Scrutiny Committee, Ninth Report of Session 2017–19, Proposed Negative Statutory Instruments under the European Union (Withdrawal) Act 2018, HL Paper 251, para 4.
Published: 5 March 2019