# C_2023296EN.01001601.xml

| 21.8.2023 | EN | Official Journal of the European Union | C 296/16 |
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21.8.2023

EN

Official Journal of the European Union

C 296/16

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Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 19 April 2023 — OB v Mercedes-Benz Group AG

(Case C-251/23, Mercedes-Benz Group)

(2023/C 296/18)

Language of the case: German

Referring court

Landgericht Duisburg

Parties to the main proceedings

Applicant: OB

Defendant: Mercedes-Benz Group AG

Questions referred

| 1. | Is a diesel-powered passenger vehicle to which the Euro 5 emissions standard applies contrary to the rules of European law, irrespective of whether a switching device that is to be classified conceptually as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 (1) is installed in its control system, if it is clear from the outset, on the basis of its design and the control system for the installed functions, that after the engine has warmed up it emits more than 180 mg of nitrogen oxide per km in the ‘mix’ even if it completes a NEDC test run in that state? |
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1.

Is a diesel-powered passenger vehicle to which the Euro 5 emissions standard applies contrary to the rules of European law, irrespective of whether a switching device that is to be classified conceptually as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 (1) is installed in its control system, if it is clear from the outset, on the basis of its design and the control system for the installed functions, that after the engine has warmed up it emits more than 180 mg of nitrogen oxide per km in the ‘mix’ even if it completes a NEDC test run in that state?

| 2. | 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 results of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation No 715/2007 and therefore 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 results of the sensing operation 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 and/or carbon dioxide? |
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2.

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 results of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation No 715/2007 and therefore 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 results of the sensing operation 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 and/or carbon dioxide?

| 3. | If Question 2 is to be answered in the affirmative: Under what conditions does the element of design in such a case constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007? |
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3.

If Question 2 is to be answered in the affirmative: Under what conditions does the element of design in such a case constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?

| 4. | If Question 2 is to be answered in the affirmative: Are rules of national law which require the purchaser of a vehicle to the full extent to prove the presence of a defeat device within the meaning of Article 3(10) 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 the provisions of Article 18(1), Article 26(1) and Article 46 of Directive 2007/46, which are mentioned in the judgment of the Court of Justice of 21 March 2023 (Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C 100/21, EU:C:2023:229) (2) in so far as it follows from those provisions that the purchaser of a vehicle must, in the event that a prohibited defeat device is installed in it, have a right to compensation against its manufacturer (see paragraphs 91 and 93 of that judgment)? |
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4.

If Question 2 is to be answered in the affirmative: Are rules of national law which require the purchaser of a vehicle to the full extent to prove the presence of a defeat device within the meaning of Article 3(10) 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 the provisions of Article 18(1), Article 26(1) and Article 46 of Directive 2007/46, which are mentioned in the judgment of the Court of Justice of 21 March 2023 (Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices), C 100/21, EU:C:2023:229) (2) in so far as it follows from those provisions that the purchaser of a vehicle must, in the event that a prohibited defeat device is installed in it, have a right to compensation against its manufacturer (see paragraphs 91 and 93 of that judgment)?

| 5. | If Question 4 is to be answered in the affirmative: What allocation of the burden of proof is provided for under European law in a dispute between the purchaser of a vehicle and its manufacturer regarding the former’s right 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? Do the parties each benefit from a lighter burden of proof or are they subject to obligations where applicable and, if so, which? If obligations do apply, what are the consequences of non-compliance? |
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5.

If Question 4 is to be answered in the affirmative: What allocation of the burden of proof is provided for under European law in a dispute between the purchaser of a vehicle and its manufacturer regarding the former’s right 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? Do the parties each benefit from a lighter burden of proof or are they subject to obligations where applicable and, if so, which? If obligations do apply, what are the consequences of non-compliance?

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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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