# C_2023321EN.01002501.xml

| 11.9.2023 | EN | Official Journal of the European Union | C 321/25 |
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11.9.2023

EN

Official Journal of the European Union

C 321/25

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Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 13 June 2023 — HT v Mercedes-Benz Group AG

(Case C-371/23, Mercedes-Benz Group)

(2023/C 321/31)

Language of the case: German

Referring court

Landgericht Duisburg

Parties to the main proceedings

Applicant: HT

Defendant: Mercedes-Benz Group AG

Questions referred

| 1. | Can an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the result of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 (1) and thus constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 even where the modulation of the parameters of the combustion process effected by the element of design based on the result of the sensing operation increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide? |
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1.

Can an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the result of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 (1) and thus constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 even where the modulation of the parameters of the combustion process effected by the element of design based on the result of the sensing operation increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide?

| 2. | If Question 1 is to be answered in the affirmative: Under what conditions does the element of design constitute a defeat device in such a case? |
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2.

If Question 1 is to be answered in the affirmative: Under what conditions does the element of design constitute a defeat device in such a case?

| 3. | Can a circuit or controller in a vehicle, which, by modulating the parameters of the combustion process, increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide, be prohibited under European law from other points of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007? |
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3.

Can a circuit or controller in a vehicle, which, by modulating the parameters of the combustion process, increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide, be prohibited under European law from other points of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?

| 4. | If Question 3 is to be answered in the affirmative: Under what conditions is this the case? |
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4.

If Question 3 is to be answered in the affirmative: Under what conditions is this the case?

| 5. | If Question 1 is to be answered in the affirmative: Under point (a) of the second sentence of Article 5(2) of Regulation No 715/2007 is a defeat device within the meaning of Article 3(10) of that regulation permitted even if, although it is not needed to protect the engine against damage or accident, it is nevertheless needed for the safe operation of the vehicle? |
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5.

If Question 1 is to be answered in the affirmative: Under point (a) of the second sentence of Article 5(2) of Regulation No 715/2007 is a defeat device within the meaning of Article 3(10) of that regulation permitted even if, although it is not needed to protect the engine against damage or accident, it is nevertheless needed for the safe operation of the vehicle?

| 6. | If Question 1 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation to prove the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and, moreover, also the absence of facts on the basis of which any defeat device in the above sense that may be established is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 (2) cited in the judgment of the Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited defeat device is installed therein (see paragraphs 91 and 93 of that judgment)? |
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6.

If Question 1 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation to prove the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and, moreover, also the absence of facts on the basis of which any defeat device in the above sense that may be established is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 (2) cited in the judgment of the Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited defeat device is installed therein (see paragraphs 91 and 93 of that judgment)?

| 7. | If Question 6 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and the existence of facts on the basis of which the latter is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them? |
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7.

If Question 6 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and the existence of facts on the basis of which the latter is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?

| 8. | If Question 3 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation, to prove the presence of a circuit or controller which, from another point of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, is prohibited, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC cited in the judgment of the European Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited circuit or controller is installed therein (see paragraphs 91 and 93 of that judgment)? |
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8.

If Question 3 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation, to prove the presence of a circuit or controller which, from another point of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, is prohibited, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC cited in the judgment of the European Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited circuit or controller is installed therein (see paragraphs 91 and 93 of that judgment)?

| 9. | If Question 8 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a prohibited circuit or controller of the type specified in Question 8? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them? |
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9.

If Question 8 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a prohibited circuit or controller of the type specified in Question 8? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?

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

(2)  Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1).

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