# C_2019182EN.01002401.xml

| 27.5.2019 | EN | Official Journal of the European Union | C 182/24 |
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27.5.2019

EN

Official Journal of the European Union

C 182/24

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Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 21 March 2019 — GB v Decker KFZ-Handels u. -Reparatur GmbH, Volkswagen AG

(Case C-244/19)

(2019/C 182/29)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: GB

Defendants: Decker KFZ-Handels u. -Reparatur GmbH, Volkswagen AG

Questions referred

| 1. | Must Article 5(1) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (1) be interpreted as meaning that the equipment of a vehicle, within the meaning of Article 1(1) of Regulation No 715/2007, is inadmissible if the exhaust gas recirculation valve (i.e. a component that is likely to affect emissions performance) is designed in such a way that the exhaust gas recirculation rate (i.e. the portion of the exhaust gas being recirculated) is regulated in such a way that the valve ensures a low-emission mode only between 15 and 33 degrees Celsius and only below an altitude of 1,000 m, and, outside this temperature window, per 10 degrees Celsius, and above an altitude of 1,000 m, per 250 metres of altitude, the rate decreases in a linear way down to zero, meaning that NOx emissions increase beyond the limits of Regulation No 715/2007? |
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1.

Must Article 5(1) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (1) be interpreted as meaning that the equipment of a vehicle, within the meaning of Article 1(1) of Regulation No 715/2007, is inadmissible if the exhaust gas recirculation valve (i.e. a component that is likely to affect emissions performance) is designed in such a way that the exhaust gas recirculation rate (i.e. the portion of the exhaust gas being recirculated) is regulated in such a way that the valve ensures a low-emission mode only between 15 and 33 degrees Celsius and only below an altitude of 1,000 m, and, outside this temperature window, per 10 degrees Celsius, and above an altitude of 1,000 m, per 250 metres of altitude, the rate decreases in a linear way down to zero, meaning that NOx emissions increase beyond the limits of Regulation No 715/2007?

| 2. | Is it relevant to the assessment of Question 1 whether the equipment referred to in Question 1 is necessary to protect the engine against damage? |
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2.

Is it relevant to the assessment of Question 1 whether the equipment referred to in Question 1 is necessary to protect the engine against damage?

| 3. | Furthermore, is it relevant to the assessment of Question 2 whether the part of the engine which is to be protected against damage is the exhaust gas recirculation valve? |
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3.

Furthermore, is it relevant to the assessment of Question 2 whether the part of the engine which is to be protected against damage is the exhaust gas recirculation valve?

| 4. | Is it relevant to the assessment of Question 1 whether the equipment of the vehicle referred to in Question 1 was already installed when the vehicle was produced or whether the regulation of the exhaust gas recirculation valve described in Question 1 is to be installed in the vehicle by way of a repair within the meaning of Article 3(2) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees? (2) |
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4.

Is it relevant to the assessment of Question 1 whether the equipment of the vehicle referred to in Question 1 was already installed when the vehicle was produced or whether the regulation of the exhaust gas recirculation valve described in Question 1 is to be installed in the vehicle by way of a repair within the meaning of Article 3(2) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees? (2)

| 5. | Must Article 3(6) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees be interpreted as meaning that, when a contract for the purchase of a vehicle has been concluded under which a vehicle is to be supplied which must comply with statutory (EU-law) provisions and such vehicle has been installed with a ‘switch logic’ (i.e. is regulated in such a way that when the vehicle is started it is in mode 1, and if the software detects a test situation — i.e. the operation of the vehicle in the framework of the New European Drive Cycle (NEDC) — the vehicle remains in mode 1 (NEDC), but if the software detects the movement of the vehicle outside the tolerance levels of the NEDC (deviations from the speed profile of +/- 2 km/h or +/- 1s), the vehicle switches to mode 0 (drive mode), in which the exhaust gas recirculation valve is regulated in such a way that the limits of Regulation No 715/2007 can no longer be met, whereby this method of regulation occurs so promptly that as a result the vehicle is essentially operated only in mode 0), this does not constitute a minor breach of contract? |
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5.

Must Article 3(6) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees be interpreted as meaning that, when a contract for the purchase of a vehicle has been concluded under which a vehicle is to be supplied which must comply with statutory (EU-law) provisions and such vehicle has been installed with a ‘switch logic’ (i.e. is regulated in such a way that when the vehicle is started it is in mode 1, and if the software detects a test situation — i.e. the operation of the vehicle in the framework of the New European Drive Cycle (NEDC) — the vehicle remains in mode 1 (NEDC), but if the software detects the movement of the vehicle outside the tolerance levels of the NEDC (deviations from the speed profile of +/- 2 km/h or +/- 1s), the vehicle switches to mode 0 (drive mode), in which the exhaust gas recirculation valve is regulated in such a way that the limits of Regulation No 715/2007 can no longer be met, whereby this method of regulation occurs so promptly that as a result the vehicle is essentially operated only in mode 0), this does not constitute a minor breach of contract?

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(1)  OJ 2007 L 171, p. 1.

(2)  OJ 1999 L 171, p. 12.

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