Information;Order — ECLI:EU:C:2021:363
Date: 2021-05-06
Language of the case: French
Court formation: Seventh Chamber
Subject matter: Environment;Transport;Pollution
Procedure: Reference for a preliminary ruling
Origin: France

Translation   C-690/18 — 1 
Case C-690/18 
Request for a preliminary ruling  
Date lodged: 
29 October 2018 
Referring court: 
Juge d’instruction du tribunal de grande instance de Paris (France) 
Date of the decision to refer: 
26 October 2018 
Prosecuting authority: 
Procureur de la République de Paris 
  
REQUEST FOR INTERPRETATION 
[…] 
[…] 
[…] [references relating to the investigating court] [Or. 2] 
ANONYMISATION OF THE REQUEST  
1 […] The present request will refer to the person under investigation in the French 
investigation procedure […] as ‘the vehicle manufacturer concerned’; [references 
to the procedure] 
2 Together with the present request, three other similar requests, concerning other 
vehicle manufacturers which market vehicles in France and in the European 
market, are also being sent today [Cases C-691 to C-693/18]; 
PARTIES TO THE DISPUTE IN THE MAIN PROCEEDINGS AND 
THEIR REPRESENTATIVES 
3 – the Procureur de la République de Paris (State Prosecutor, Paris) 
4 – a list of the parties claiming damages, sent in a separate document  
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2018 — CASE C-690/18 
 
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SUBJECT MATTER OF THE DISPUTE AND RELEVANT FACTS  
5 Following the denunciation in the press of a European vehicle manufacturer, the 
French Ministre de l’Ecologie, du Développement Durable et de l’Energie (the 
French Minister for Ecology, Sustainable Development and Energy) decided to 
have tests carried out by the Union Technique de l’Automobile, du motocycle et 
du Cycle (Technical Union for the Automobile, Motorcycle and Bicycle 
Industries) (UTAC) on a representative sample group of the vehicles used on 
French roads in order to identify any indications of fraud in the antipollution tests 
for the European approval of those vehicles. 
6 Alongside those tests, and in the exercise of her own powers, the Directrice 
Générale de la Concurrence, de la Consommation et de la Répression des Fraudes 
(Director-General for Competition, Consumers and the Elimination of Fraud) 
(DGCCRF) [Or. 3] requested her Service National des Enquêtes (National 
Investigative Service) (SNE) to carry out investigations in order to establish any 
offences of deception by looking for a device that would detect the approval test 
stage and modify the operation of the engine during that test. 
7 Thus, three diesel vehicles from a sample of the vehicle manufacturer which the 
present request concerns were subjected to tests carried out by the Union 
Technique de l’Automobile, du motocycle et du Cycle (UTAC), then to further 
tests by the Institut Français du Pétrole Energies Nouvelles (French Institute of 
Petroleum New Energies) (IFPEN). These tests revealed irregularities for one 
model of the marque of the vehicle manufacturer concerned, a Euro 6 generation 
vehicle fitted with a certain type of diesel engine. 
8 In its report of 2 February 2017 to the Procureur de la République de Paris, the 
SNE set out the regulatory framework for the approval of vehicles relating to 
pollutant emissions. Thus, Directive 2007/46/EC of 5 September 2007 provides 
the Member States with a legal framework for the Community approval of motor 
vehicles. Regulation (EC) No 715/2007 of 20 June 2007 specifies the conditions 
of approval with respect to pollutant emissions and defines, in particular, the 
maximum level of NOx emissions. In the approval test relating to pollutant 
emissions, vehicles were, at the relevant time, tested according to a protocol the 
parameters of which (speed profile followed, temperature, preconditioning of the 
vehicle) were precisely defined by Regulation No 83 of the United Nations 
(UN/ECE). The test in question is called the New European Driving Cycle 
(NEDC), the protocol of which consists in the repetition of four urban cycles, 
followed by one extra-urban cycle, and includes on the preceding day a regulatory 
preconditioning of the vehicle that allows all the vehicles tested to begin the test in 
similar conditions. 
9 In addition, the SNE described the operation of the EGR (Exhaust Gas 
Recirculation) valve, which is used on Euro 6 generation vehicles, and is itself 
operated by the engine control calculator; it explained that those vehicles use an 
NOx trap and two EGR circuits to carry out the depollution: [Or. 4] 
CLCV AND OTHERS 
 
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10 – The engine control calculator consists of an [electronic] component (processor), 
in which a program has been installed which makes it possible to control the 
mechanical elements of the engine in accordance with all the data collected by the 
different sensors. The calculator permanently analyses the information about the 
state of the engine (intake air temperature, speed, load, acceleration, etc.) by 
means of sensors and controls the operation of the various engine components 
(injection, use of the EGR, purging of the NOx trap, etc.) in accordance with the 
information collected. The parameters or calibration of the calculator are set by 
the manufacturer […]; [technical references] 
11 – The NOx trap, according to the technology used by the vehicle manufacturer 
concerned, is the equivalent of a filter, which stores the NOx. None the less, the 
storage capacity of the NOx trap is relatively low and it must be purged very 
regularly, every 5 to 10 kilometres, to retain its effectiveness. Purging allows the 
NOx to be burnt, to be chemically degraded. In the absence of sufficiently regular 
purging, the reservoir of the NOx trap is full and simply allows the nitrogen 
oxides to circulate in the exhaust gases without retaining them; 
12 – The EGR valve is a system which consists in redirecting part of the exhaust 
gases of combustion engines into the gas inlet manifold, that is to say, the point of 
entry of air supplied to the engine, in order to reduce nitrogen oxides (NOx) 
emissions. 
13 The exhaust gas recirculation depollution system consists of a channel that allows 
the exhaust gases to be taken to the inlet, together with a heat exchanger designed 
to re-cool the burnt gases and an EGR valve that regulates the flow of burnt gases 
re-introduced into the intake. 
14 The technology used by the vehicle manufacturer concerned consists of a dual 
EGR circuit: one high pressure and the other low pressure, the final objective 
being the same for both circuits, namely to reduce […] the formation of NOx. 
[Or. 5] 
15 It transpired from the tests carried out by the UTAC that the vehicles showed a 
significant increase in NOx emissions when the beginning of the speed profile of 
the approval cycle was shortened and when the engine temperature was modified, 
and from the tests carried out by the IFPEN on the Euro 6 generation vehicle 
referred to above that for the extra-urban cycle the EGR circuit and the gearbox 
were also managed differently by comparison with the extra-urban [Note: perhaps 
this should read ‘urban’] cycle. The modification of the use of the EGR and of the 
operation of the gearbox resulted in a significant increase in NOx emissions. 
16 It was apparent from the SNE investigators’ report that the vehicle manufacturer 
concerned developed and marketed in France Euro 6 diesel vehicles fitted with a 
device that modified the use of the EGR circuit and the gearbox when the D2 test, 
where the speed profile is modified, is applied, and also modified the operation of 
the purges of the NOx trap when the D2 test is applied without the engine being 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2018 — CASE C-690/18 
 
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switched off. The mechanical modifications resulted in a significant underuse of 
the engine depollution components outside the strict conditions of approval, 
leading to an increase in NOx emissions, equal to 660.6% of the regulatory limit 
in the first case (the D2 test) and equal to 1097.5% of the regulatory limit in the 
second case (the D2 test without the engine being switched off). 
17 The SNE also found that the vehicle manufacturer concerned had developed and 
marketed Euro 5 generation vehicles which when the D2 test was applied by the 
UTAC had shown a significant increase in NOx emissions, although those 
vehicles had not been tested by the IFPEN. 
18 A judicial investigation in relation to aggravated deception was opened on 
15 March 2017 and assigned to three investigating judges; the investigations are 
still pending. [Or. 6] 
LEGISLATION 
Classification of the offence in prosecution’s application of 15 March 2017: 
19 […] having […], since 1 September 2009, […] deceived purchasers of vehicles of 
the marques concerned, fitted […] with Euro 6 generation diesel engines, […] and 
Euro 5 engines […], [procedural and technical references] 
as to the essential qualities of the vehicles and the controls carried out, with […] 
the consequence that the goods are rendered dangerous to human and animal 
health. 
20 Offences contrary to and punishable under […] [the] Penal Code [and the] […] 
Consumer Code […] [list of the relevant provisions]. 
NATIONAL PROVISIONS APPLICABLE TO THE FACTS OF THE 
DISPUTE  
Former provisions: 
Article L.213-1 of the Consumer Code 
Version applicable until 18 March 2014: [Or. 7] 
21 Anyone, whether or not a party to the contract, who has deceived or attempted to 
deceive a party to the contract, by any means or practice whatsoever, even through 
a third party, as to either: 
22 (1) the nature, kind, origin, essential qualities, composition or content of necessary 
ingredients of any goods; or 
CLCV AND OTHERS 
 
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23 (2) the quantity or identity of the things supplied, by supplying a good other than 
the specific thing that formed the subject matter of the contract; or 
24 (3) suitability for use, the risks inherent in the use of the good, the controls carried 
out, the instructions for use or the precautions to be taken, 
shall be liable to a term of imprisonment of up to two years and a fine of up to 
EUR 35 000 or only one of those penalties. 
25 The amount of the fine may be increased, in proportion to the advantages derived 
from the offence, to 10% of the average annual turnover, calculated on the basis of 
the last three annual turnovers known on the date of the facts. 
Version applicable from 19 March 2014 until 30 June 2016: 
26 Anyone, whether or not a party to the contract, who has deceived or attempted to 
deceive a party to the contract, by any means or practice whatsoever, even through 
a third party, as to either: 
27 (1) the nature, kind, origin, essential qualities, composition or content of necessary 
ingredients of any goods; or 
28 (2) the quantity or identity of the things supplied, by supplying a good other than 
the specific thing that formed the subject matter of the contract; or 
29 (3) suitability for use, the risks inherent in the use of the goods, the [Or. 8] 
controls carried out, the instructions for use or the precautions to be taken, 
shall be liable to a term of imprisonment of up to two years and a fine of up to 
EUR 300 000. 
30 The amount of the fine may be increased, in proportion to the advantages derived 
from the offence, to 10% of the average annual turnover, calculated on the basis of 
the last three annual turnovers known on the date of the facts. 
Article L.213-2 of the Consumer Code 
Version applicable until 18 March 2014: 
31 The penalties prescribed in Article L.213-1 shall be doubled: 
32 (1) If the offences laid down in that article have had the consequence of rendering 
the use of the goods dangerous for humans or animals; 
33 (2) If the offence or the attempted offence provided for in Article L. 213-1 was 
committed either: 
34 (a) with the assistance of false or inaccurate weights, measures and other 
instruments; or 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2018 — CASE C-690/18 
 
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35 (b) with the assistance of manoeuvres or practices designed to distort the 
operations of analysis or mixture, weighing or measuring, or designed to 
fraudulently modify the composition, weight or volume of the goods, even before 
those operations; or, last, 
36 (c) with the assistance of fraudulent information designed to confer credibility on 
a previous accurate operation. 
Version applicable from 19 March 2014 until 30 June 2016: 
37 I.- The penalties prescribed in Article L.213-1 shall be increased to five years’ 
imprisonment and a fine of EUR 600 000 if the offence or attempted offence 
provided for in Article L.213-1 was committed either: 
38 (1) with the assistance of false or inaccurate weights, measures and other 
instruments; [Or. 9] or 
39 (2) with the assistance of manoeuvres or practices designed to distort the 
operations of analysis or dosage, weighing or measuring, or designed to 
fraudulently modify the composition, weight or volume of the goods, even before 
those operations; or 
40 (3) with the assistance of fraudulent information designed to confer credibility on 
a previous accurate operation. 
41 II.- The penalties prescribed in Article L.213-1 shall be increased to seven years’ 
imprisonment and a fine of EUR 750 000 if the offence or attempted offence 
provided for in Article L.213-1: 
42 (1) have had the consequence of rendering the use of the goods dangerous to 
human or animal health; 
43 (2) were committed in an organised gang. 
44 III.- The fines prescribed in this Article may be increased, in proportion to the 
advantages derived from the offence, to 10% of the average annual turnover, 
calculated on the basis of the last three annual turnovers known on the date of the 
facts. 
Article L.213-6 of the Consumer Code 
45 Legal persons declared criminally liable, in the conditions laid down in 
Article 121-2 of the Penal Code, for the offences defined in Articles L.213-1 to 
L.213-4 shall incur, in addition to the fine according to the procedures laid down 
in Article 131-38 of the Penal Code, the penalties prescribed in paragraphs 2 to 9 
of Article 131-39 of that Code. 
CLCV AND OTHERS 
 
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46 The prohibition referred to in paragraph 2 of Article 131-39 of the Penal Code 
shall apply to the activity in the exercise or on the occasion of which the offence 
was committed. 
New version (from 1 July 2016): 
Article L.441-1 of the Consumer Code [Or. 10] 
47 No one, whether or not a party to the contract, shall deceive or attempt to deceive 
the party to the contract, by any means or practice whatsoever, even through a 
third party, as to either: 
48 (1) the nature, kind, origin, essential qualities, composition or content of necessary 
ingredients of any goods; or 
49 (2) the quantity or identity of the things supplied, by supplying a good other than 
the specific thing that formed the subject matter of the contract; or 
50 (3) suitability for use, the risks inherent in the use of the goods, the controls 
carried out, the instructions for use or the precautions to be taken. 
51 The provisions of this Article shall also apply to supplies of services. 
Article L.454-3 of the Consumer Code 
52 Failure to comply with the prohibition laid down in Article L.441-1 shall be 
punishable by a term of imprisonment of seven years and a fine of EUR 750 000 if 
the offence or attempted offence: 
53 (1) has had the consequence of rendering the use of the goods dangerous to human 
or animal health; 
54 (2) was committed in an organised gang. 
Article L.454-4 of the Consumer Code 
55 The fines prescribed in Articles L.454-1 to L.454-3 may be increased, in 
proportion to the advantages derived from the offence, to 10% of the average 
annual turnover, calculated on the basis of the three last annual turnovers known 
on the date of the facts. [Or. 11] 
EUROPEAN UNION LAW APPLICABLE TO THE PRESENT CASE  
56 In the context 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 (Official Journal of the 
European Union, 29.6.2007 — L 171, p. 1): 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2018 — CASE C-690/18 
 
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57 Article 3(10), in Chapter 1, ‘Subject matter, scope and definitions’, of that 
regulation [provides]: 
58 ‘10. “defeat device” means any element of design which senses temperature, 
vehicle speed, engine speed (RPM), transmission, gear, manifold vacuum or any 
other parameter for the purpose of activating, modulating, delaying or deactivating 
the operation of any part of the emission control system, that reduces the 
effectiveness of the emission control system under conditions which may 
reasonably be expected to be encountered in normal vehicle operation and use;’ 
59 Article 5(2), in Chapter 2, ‘Manufacturers’ obligations’, of the abovementioned 
regulation,[provides]: 
60 ‘Requirements and tests  
61 1. The manufacturer shall equip vehicles so that the components likely to affect 
emissions are designed, constructed and assembled so as to enable the vehicle, in 
normal use, to comply with this Regulation and its implementing measures. 
62 2. The use of defeat devices that reduce the effectiveness of emission control 
systems shall be prohibited. The prohibition shall not apply where: [Or. 12] 
63 (a) the need for the device is justified in terms of protecting the engine against 
damage or accident and for safe operation of the vehicle; 
64 (b) the device does not function beyond the requirements of engine starting; 
or 
65 (c) the conditions are substantially included in the test procedures for verifying 
evaporative emissions and average tailpipe emissions.’ 
REASONS FOR MAKING THE REFERENCE FOR A PRELIMINARY 
RULING  
66 The legal mechanism of deception in this case, if it were made out, would consist 
in having deceived purchasers of vehicles of the marques concerned fitted with 
Euro 6 […] and Euro 5 generation diesel engines as to the essential qualities of 
their vehicles, in this instance non-conformity with Regulation (EC) No 715/2007 
of 20 June 2007, non-conformity that might be characterised by the presence in 
the vehicle of a defeat device prohibited by Article 5(2) of the regulation and 
defined in Article 3(10) of that regulation, which modifies the use of the EGR 
circuit and the gearbox in a specific way and the operation of the purging of the 
NOx trap during the implementation of the NEDC approval cycle, entailing 
overuse of the depollution systems when the external and internal conditions are 
those encountered during the approval test and significant underuse of the 
depollution components in normal vehicle use conditions. 
CLCV AND OTHERS 
 
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67 In the light of the decision adopted in 2012 by the International Agency for 
Research on Cancer (IARC) to classify diesel engine exhaust gases as known 
carcinogens, the aggravating circumstance that the facts had the consequence of 
rendering the use of those vehicles dangerous to human and animal health is also 
envisaged. [Or. 13] 
68 The devices employed to act on the operation of the emission control system [are 
capable of] taking different forms. Given that diversity of technical designs, it is 
important to be able to identify whether a particular device is a defeat device 
within the meaning of Regulation (EC) No 715/2007. Also, since the 
characterisation of deception, as envisaged, is based on the interpretation of the 
abovementioned European regulation, we have decided to refer to the Court a 
question on the interpretation of Articles 3(10) and 5(2) of Regulation (EC) 
No 715/2007, as in our view a decision of the Court was necessary in order to 
decide whether to proceed to a judicial investigation (mise en examen) and 
whether to commit [the vehicle manufacturer concerned] for trial at the close of 
the investigation, since that question of interpretation is novel and of general 
interest for the uniform application of EU law and since, moreover, the existing 
case-law does not seem to provide the necessary clarification.  
The position of the vehicle manufacturer [concerned] 
69 The representatives of the vehicle manufacturer [concerned] have not yet been 
heard on the substance in the investigation, but in a letter to the investigating 
judge [they] indicated that the vehicles did not deactivate their emission control 
systems but used ‘a variety of control strategies that alter the operation of the 
emission control system solely in order to protect the integrity of the engine and 
the safety of the occupants of the vehicles, in accordance with the applicable 
legislation’. 
QUESTIONS FOR A PRELIMINARY RULING 
1. Interpretation of the concept of ‘design’  
1(1): What is covered by the concept of ‘element of design’ in Article 3(10) of 
Regulation (EC) No 715/2007, which defines ‘defeat device’? 
1(2): May a program integrated in the engine control calculator or more generally 
[Or. 14] acting on that calculator be considered to be an element of design within 
the meaning of that article? 
2. Interpretation of the concept of ‘emission control system’ 
2(1): What is covered by the concept of ‘emission control system’ in Article 3(10) 
of Regulation (EC) No 715/2007, which defines ‘defeat device’? 
REQUEST FOR A PRELIMINARY RULING OF 26. 10. 2018 — CASE C-690/18 
 
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2(2): Does this emission control system include only the technologies and 
strategies aimed at treating and reducing emissions (in particular [of] NOx) after 
they have been created, or does it also incorporate the different technologies and 
strategies that enable the initial production of emissions to be limited, such as 
EGR technology? 
3. Interpretation of the concept of ‘defeat device’ 
3(1): Is a device that detects any parameter connected with the conduct of the 
approval procedures provided for in Regulation (EC) No 715/2007, for the 
purposes of activating or adjusting upwards, during those procedures, the 
operation of any part of the emission control system, and thus obtaining approval 
of the vehicle, a ‘defeat device’ within the meaning of Article 3(10) of Regulation 
(EC) No 715/2007? 
3(2): If so, is that defeat device prohibited under Article 5(2) [of Regulation (EC)] 
No 715/2007? 
3(3): May a device as described in question 3(1) be characterised as a ‘defeat 
device’ if the upwards adjustment of the activation of the emission control system 
is effective, not only during the approval procedures, but also on specific 
occasions when the precise conditions detected for the purpose of adjusting the 
emission control system upwards during those approval procedures are 
encountered in actual traffic? [Or. 15]  
4. Interpretation of the exceptions provided for in Article 5 
4(1): What is covered by the three exceptions provided for in Article 5(2) in 
Chapter 2 of Regulation (EC) No 715/2007? 
4(2): Might the prohibition of the defeat device activating or adjusting upwards 
the operation of any part of the emission control system specifically during the 
approval procedures be disregarded for one of the three reasons listed in 
Article 5(2)? 
4(3): Is slowing down the aging or the clogging up of the engine among the 
requirements of ‘protecting the engine against damage or accident’ or of ‘safe 
operation of the vehicle’ that may justify the presence of a defeat device within 
the meaning of Article 5(2)(a)? 
Done in Paris on 26 October 2018 
[…] 
[signatures]