Opinion of the Advocate General — ECLI:EU:C:2022:156
Date: 2022-03-03
Language of the case: German
Subject matter: Environment;Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 November 2019 
Referring court: 
Schleswig-Holsteinisches Verwaltungsgericht (Germany) 
Date of the decision to refer: 
20 November 2019 
Applicant: 
Deutsche Umwelthilfe e.V. 
Defendant: 
Bundesrepublik Deutschland 
Joined party: 
Volkswagen AG 
      
Subject matter of the main proceedings 
Standing of an environmental association to bring proceedings in a dispute 
concerning the permissibility of defeat devices in diesel engines — Permissibility 
of a so-called ‘temperature window’ pursuant to Regulation No 715/2007 — 
Yardstick and criteria concerning the question of whether the need for a defeat 
device is justified 
Subject matter and legal basis of the request 
Interpretation of the Aarhus Convention and of EU law, Article 267 TFEU 
EN 
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Questions referred 
1. Is Article 9(3) of the Convention on access to information, public 
participation in decision-making and access to justice in environmental 
matters — signed in Aarhus on 25 June 1998 and approved on behalf of the 
European Community by Council Decision 2005/370/EC of 17 February 
2005 — in conjunction with Article 47 of the Charter of Fundamental Rights 
of the European Union, to be interpreted as meaning that it must in principle 
be possible for environmental associations to challenge before the courts a 
decision approving the manufacture of diesel passenger cars with defeat 
devices that are potentially in breach of Article 5(2) 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? 
2. If Question 1 is answered in the affirmative: 
(a) Is Article 5(2) 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 to 
be interpreted as meaning that the yardstick for determining whether the 
need for a defeat device is justified in terms of protecting the engine against 
damage or accident and for safe operation of the vehicle is, in principle, the 
state of the art, in the sense of what is technically feasible at the time when 
the EC type approval is granted? 
(b) In addition to the state of the art, should account be taken of other 
circumstances which may lead to the permissibility of a defeat device, even 
though, according to the current state of the art alone, the ‘need’ for such a 
device would not be ‘justified’ within the meaning of Article 5(2)(a) 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? 
Provisions of international law cited 
UNECE Convention on access to information, public participation in decision-
making and access to justice in environmental matters (‘the Aarhus Convention’), 
Article 9(3) 
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Provisions of EU law cited 
Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf 
of the European Community, of the Convention on access to information, public 
participation in decision-making and access to justice in environmental matters 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 47 
and 52(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, Article 5(2) 
Directive 2011/92/EU of the European Parliament and of the Council of 
13 December 2011 on the assessment of the effects of certain public and private 
projects on the environment 
Provisions of national law cited 
Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in 
Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG (Law on 
supplementary provisions on access to review procedures in environmental 
matters pursuant to Directive 2003/35/EC) (Umwelt-Rechtsbehelfsgesetz (Law on 
access to review procedures in environmental matters) — UmwRG), 
Paragraphs 1, 2 and 3 
Verordnung über die EG-Genehmigung für Kraftfahrzeuge und ihre Anhänger 
sowie für Systeme, Bauteile und selbstständige technische Einheiten für diese 
Fahrzeuge (Regulation on EC approval for motor vehicles and their trailers, and 
for systems, components and separate technical units intended for such vehicles) 
(EG-Fahrzeuggenehmigungsverordnung (EC Vehicle Approval Regulation) — 
EG-FGV), Paragraph 25(1) and (2) 
Verwaltungsgerichtsordnung (Code of administrative court procedure; ‘the 
VwGO’), Paragraph 42 and the first sentence of Paragraph 113(1) 
Brief summary of the facts and procedure 
1 The parties are in dispute over the applicant’s standing to bring proceedings and 
the existence of impermissible defeat devices or the impermissibility of defeat 
devices in the engines of the VW Golf Plus TDI (2.0 litre) vehicle model 
manufactured by Volkswagen AG, which has been joined as a party to the 
proceedings. 
2 The applicant is an environmental association recognised as being able to bring 
legal proceedings pursuant to Paragraph 3 of the UmwRG, and which has as its 
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purpose, according to its articles of association, the promotion of protection of 
nature and of the environment as well as health- and environment-related 
consumer protection, in particular through the provision of information and advice 
to consumers. 
3 The joined party is a German automobile manufacturer and produces the VW Golf 
Plus TDI (2.0 litre) model, amongst others. The vehicles of this model are fitted 
with a diesel engine with an EA 189 Euro 5 unit. In the context of the so-called 
‘diesel scandal’, it was revealed that the vehicles of the aforementioned model, 
amongst others, were fitted with a defeat device by the joined party at the factory. 
At the time of approval, the engine control unit of this type of engine contained 
software that made it possible to detect whether the vehicle is performing a 
driving cycle on a test rig. In this case, a special mode is activated in which the 
exhaust gas recirculation rate is significantly increased, with the result that the 
vehicle emits less nitrogen oxide. During real-world driving, this mode is 
completely deactivated, resulting in significantly higher nitrogen oxide emissions. 
In the course of the approval procedure at the Kraftfahrt-Bundesamt (Federal 
Motor Transport Authority; ‘the KBA’), this software was not specified by the 
joined party when it submitted its application. Although on the test rig the 
nitrogen oxide emissions of the vehicles therefore remain within the permitted 
levels of the EC type approval granted, during normal road use the nitrogen oxide 
emissions exceed the values permitted under the EC type approval. 
4 By a definitive decision of 15 October 2015, which is not at issue in the present 
case, the KBA ordered the joined party, inter alia, to remove impermissible defeat 
devices and to take appropriate measures to restore compliance with the 
regulatory requirements. According to the decision, specific solutions had to be 
approved by the KBA before being implemented in practice. 
5 The joined party subsequently developed a software update that was intended to 
remedy the defects that had become known in the exhaust systems of the vehicles. 
6 By approval notification of 20 June 2016, the KBA informed the joined party that, 
after the software update developed by the joined party had been installed in the 
VW Golf Plus TDI (2.0 litre) model vehicles, there were no longer any 
impermissible defeat devices; the KBA deemed the defeat devices that were still 
present to be permissible. 
7 According to the defendant’s findings also, even after the software had been 
applied the vehicle at issue has a so-called ‘temperature window’ in which the 
exhaust gas recirculation rate is controlled as a function of the ambient 
temperature. According to the information supplied by the joined party, the 
exhaust gas recirculation rate is 0% at temperatures below -9C, 85% between -
9C and 11C, and then it rises as from 11C until it finally reaches 100% at an 
ambient temperature of 15C. 
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8 The applicant challenged that decision by an objection lodged on 15 November 
2016, on which a decision has yet to be taken. It therefore instituted proceedings 
on 24 April 2018 and requests, in particular, that the approval notification of 
20 June 2016 be annulled in so far as it states that no impermissible defeat devices 
had been identified and that existing defeat devices are considered to be 
permissible. 
Principal arguments of the parties in the main proceedings 
9 The applicant takes the view that the defeat devices deemed to be permissible by 
the KBA also had to be assessed as being prohibited within the meaning of the 
first sentence of Article 5(2) of Regulation No 715/2007 because the defeat 
devices installed became active as soon as the average temperatures prevailing in 
Germany were reached. However, it was possible, in principle, for manufacturers 
to design and install engines which, from a technical point of view, did not require 
that the exhaust gas purification systems already be regulated downwards at 
average temperatures, that is to say under normal conditions. 
Brief summary of the basis for the request 
The first question: the applicant’s standing to bring proceedings 
10 The referring court takes the view that, in the present case, the applicant does not 
have standing to bring proceedings under national procedural law (I.), with the 
result that the decisive factor is whether it can derive such standing directly from 
EU law (II.). 
I. Standing to bring proceedings under national procedural law 
11 The referring court initially examines whether the applicant’s standing to bring 
proceedings arises from Paragraph 2(1), in conjunction with the first sentence of 
Paragraph 1(1), of the UmwRG. It finds this not to be the case, because the matter 
does not even come within scope of the UmwRG, which is governed in 
Paragraph 1(1) of the UmwRG. In order for it to do so, it would have to concern a 
challenge to an administrative act by which a ‘project’ is permitted. However, 
type approval for passenger cars and approval as a modification of the type 
approval, such as is at issue here, constitute a case of product approval and do not 
concern a project. Nor can a broad interpretation of the concept of ‘project’ or an 
analogous application of the provisions of the UmwRG be contemplated in the 
present case. 
12 The applicant cannot directly derive standing to bring proceedings from 
Article 9(3) of the Aarhus Convention either, as that provision is not directly 
applicable. Rather, the implementation and effect of that provision depend on the 
adoption of further acts by the Member States (see judgment of the Court of 
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Justice of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz 
Umweltorganisation, C-664/15, EU:C:2017:987). 
13 Finally, the applicant is also unable to assert any subjective rights of a natural 
person vis-à-vis public authorities and enforce them in court, since it is not 
possible to identify any such subjective rights vis-à-vis public authorities in the 
present case. The referring court takes the view that the infringement of the 
prohibition on the use of defeat devices laid down in the first sentence of 
Article 5(2) of Regulation No 715/2007, which is the only conceivable 
infringement in the present case, does not confer a subjective right on a natural 
person, since that provision does not serve to protect individual citizens. 
II. Standing to bring proceedings arising directly from EU law 
14 In the view of the referring court, the crucial question for the decision in the 
present case is therefore whether the applicant can derive standing to bring 
proceedings directly from EU law. In the light of the current case-law of the Court 
of Justice (judgment of 20 December 2017, Protect Natur-, Arten- und 
Landschaftsschutz Umweltorganisation, C-664/15, EU:C:2017:987), such 
standing could arise from Article 9(3) of the Aarhus Convention in conjunction 
with Article 47(1) of the Charter. In this respect, the facts of the case come within 
the scope of Article 9(3), and not Article 9(2), of the Aarhus Convention, since, 
firstly, the approval notification is not a decision to which Article 6 of the Aarhus 
Convention applies. This is because it is not a proposed activity listed in Annex I 
pursuant to Article 6(1)(a), nor is Article 6 to be applied in accordance with 
national law pursuant to Article 6(1)(b), since the decision in question may have a 
significant effect on the environment — there is no provision in national law 
under which the article applies to the present case. Secondly, the case does not 
concern national legislation within the meaning of the first sentence of 
Article 9(2) of the Aarhus Convention, pursuant to which other relevant 
provisions of the Convention are to apply to the present case. 
15 In a decision delivered in relation to Austrian law, the Court of Justice stated that 
the interaction of that legislation obliged the Member States to ensure effective 
judicial protection of the rights guaranteed by EU law, in particular the provisions 
of environmental law. In particular, criteria laid down in national law should not 
deprive environmental associations of the possibility of verifying compliance with 
provisions arising from EU environmental law. Although the Member States 
enjoy a certain degree of discretion as to the implementation of those 
requirements, criteria so stringent that it would be effectively impossible for 
environmental organisations to contest the actions or omissions that are the 
subject of Article 9(3) of the Aarhus Convention are not permissible. The national 
courts therefore have to interpret, to the greatest extent possible, procedural law in 
accordance with both the objectives of Article 9(3) of the Aarhus Convention and 
the objective of effective judicial protection of the rights conferred by EU law. 
Should that not be possible, the national court must disapply a procedural rule 
which is inconsistent with EU law in the case before it. 
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16 The consequences resulting from that decision in terms of national procedural law 
have been assessed differently in national case-law. 
17 For instance, in a decision of 18 April 2018, the Verwaltungsgericht Berlin 
(Administrative Court, Berlin) took the view that recognised environmental 
associations can, in the light of the decision of the Court of Justice of 
20 December 2017 [in Case C-664/15], bring judicial proceedings to enforce 
compliance with purely objective-law environmental legislation that is based on 
EU environmental law. The relevant German provision, it held, was applicable on 
the condition that, in order for it to be found that standing to bring proceedings 
existed, it was sufficient if a recognised environmental association sought 
compliance with the legislation arising from EU environmental law. 
18 The Verwaltungsgericht Düsseldorf (Administrative Court, Düsseldorf) took a 
different legal view in a decision on 24 January 2018. Article 9(3) of the Aarhus 
Convention, in conjunction with the first paragraph of Article 47 of the Charter, 
does not, in its view, require that environmental associations be granted rights of 
associations to bring proceedings which go beyond the cases provided for by the 
UmwRG. This is because the national legislature is not required to guarantee 
access to justice without any restriction whatsoever. This is directly apparent from 
the Aarhus Convention alone, pursuant to which ‘criteria’ could be laid down for 
review procedures. Article 52(1) of the Charter also provides for the possibility of 
limiting the right to an effective remedy pursuant to the first paragraph of 
Article 47 of the Charter by law. Under national procedural law, environmental 
associations generally have broad access to the courts. The fact that, on the other 
hand, they cannot challenge the authorisation of individual products before the 
courts does not therefore constitute a disproportionate restriction, since, in 
themselves, those products are scarcely of any significance in the context of 
environmental law. Finally, the possibilities for environmental associations to 
initial review procedures against administrative decisions provided by national 
[German] law are wider than the possibilities provided for by Austrian procedural 
law, on which the judgment of the Court of Justice of 20 December 2017 [in Case 
C-664/15] is based. 
19 It is also in the light of that discordant national case-law that the referring court 
entertains doubts as to whether Article 9(3) of the Aarhus Convention, in 
conjunction with Article 47 of the Charter, is to be interpreted as meaning that it 
must also be possible for recognised environmental organisations to challenge an 
administrative product approval of the kind at issue in the present case by means 
that go beyond the already existing possibilities of judicial protection under the 
UmwRG, provided that enforcement of compliance with objective-law provisions 
of EU environmental law is sought. 
20 Pursuant to Article 9(3) of the Aarhus Convention, each party is required to ensure 
that, where they meet the criteria, if any, laid down in its national law, members of 
the public have access to administrative or judicial procedures in order to 
challenge acts and omissions by private persons and public authorities which 
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contravene provisions of its national law relating to the environment. Thus, the 
Aarhus Convention also provides that the right of associations to bring 
proceedings is not unrestricted, but only in so far as environmental associations 
satisfy certain criteria laid down in national law; Member States therefore have a 
certain amount of leeway when creating their procedural rules. However, the 
criteria laid down by the Member States must not be so stringent as to make it 
effectively impossible for environmental organisations to contest the actions or 
omissions that are the subject of Article 9(3) of the Aarhus Convention. 
21 The referring court firstly has doubts as to whether the ‘criteria … laid down in … 
national law’ within the meaning of Article 9(3) of the Aarhus Convention cover 
only criteria relating to the group of persons entitled to challenge acts and 
omissions. In that case, the Member States would have leeway only with regard to 
the question of which environmental associations should also have the right to 
enforce environment-related general interests in court by way of proceedings 
brought by an association. The national legislature has laid down such criteria in 
Paragraph 3 of the UmwRG in a binding manner. 
22 However, Article 9(3) of the Aarhus Convention could also be interpreted as 
meaning that Member States can also make distinctions as to the subject matter of 
the challenge and may therefore exclude certain administrative decisions from 
judicial review brought about by environmental associations. Due to the large 
number of administrative decisions relating to the environment, a limitation to 
certain decisions that are serious in terms of their environmental impact could 
make sense. This might support the view that a decision taken by the national 
legislature to exclude product approvals from the scope of the UmwRG would in 
principle be in line with Article 9(3) of the Aarhus Convention. Although not all 
product approvals can be deemed to be of only minor environmental significance, 
practical considerations also support the argument that Member States must be 
able, by way of categorising considerations, to avoid subjecting certain individual 
decisions to the uncertainty of being challenged by third parties which are not yet 
a party to the dispute, given the large number of individual product approvals, 
such as the approval of an individual vehicle by the locally competent approval 
authority. This is all the more true given that the decision will generally not be 
made known to them and they will therefore not be informed of legal remedies 
either. 
23 In addition, the facts of the Protect ruling of the Court of Justice differ from those 
in the present case. This is because, unlike in that case which has already been 
decided, under national law environmental associations are also able to have the 
approval of projects reviewed within the framework of the UmwRG. A total 
exclusion of the right of associations to bring proceedings does not exist in 
national law. A comparable gap in legal protection, such as that established by the 
decision of 20 December 2017 [in Case C-664/15] in relation to Austrian law, 
therefore does not exist in national [German] procedural law. 
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The second question 
24 In the event that the Court of Justice answers the first question in the affirmative, 
the referring court requests that the second question referred also be answered. If 
it is assumed that the applicant also has standing to bring proceedings in the 
present case, the decision on the legality of the contested approval notification 
depends crucially on how Article 5(2) of Regulation No 715/2007 is to be 
interpreted — in particular, what yardstick is to be used in order to determine 
whether the ‘need’ to install a defeat device is ‘justified’. One of the decisive 
factors for the referring court’s examination as to the legality of the approval 
notification is whether the default devices disclosed by the joined party are 
permissible — as assumed by the KBA. 
25 It is common ground that, even after the implementation of the software update 
approved by the KBA in the contested notification, there are still defeat devices in 
the engine control units of the vehicles concerned. These are in principle 
prohibited under the first sentence of Article 5(2) of Regulation No 715/2007. 
Pursuant to Article 5(2)(a) of Regulation No 715/2007, default devices are 
permissible by way of exception if the need for the device is justified in terms of 
protecting the engine against damage or accident and for safe operation of the 
vehicle. Regulation No 715/2007 does not determine the question as to when this 
is the case. 
26 The recitals of Regulation No 715/2007 set out various reasons explaining why it 
was important for the regulation to be adopted. Recital 1, for example, refers to 
the fact that the rules adopted are intended, inter alia, to ensure a high level of 
environmental protection. Recital 6 states that, in particular, a considerable 
reduction in nitrogen oxide emissions from diesel vehicles is necessary in order to 
improve air quality and to comply with limit values for pollution. Recital 7 
mentions, inter alia, improving air quality, reducing health costs and increasing 
life expectancy as benefits of the provisions to be taken into account. Against this 
background, there are serious indications for the referring court to assume a 
fundamentally narrow concept of a justified need — the protection of high-level 
legal interests is the focus of Regulation No 715/2007. As a consequence, it could 
therefore be assumed that motor vehicle manufacturers will primarily have to 
orient themselves on the current state of the art when it comes to determining 
whether the need for a defeat device is actually justified in terms of protecting the 
engine or for safe operation of a motor vehicle. 
27 However, recital 7 puts these objectives into perspective with regard to the setting 
of emission limit values. Pursuant to that recital, account should also be taken of 
the implications for markets and manufacturers’ competitiveness, as well as the 
direct and indirect costs imposed on business. Here, the legislature could have 
been expressing that, beyond the objective of achieving the highest possible level 
of environmental protection, there are other circumstances which were not only 
identified before the regulation was adopted but could also be taken into account 
under certain circumstances when it is being interpreted. However, the referring 
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court takes the view that an exception pursuant to Article 5(2) of Regulation 
No 715/2007 must in principle not be considered if, for cost reasons, diesel 
engines are technically designed by the manufacturer in such a way that an 
effective exhaust gas purification system is not guaranteed during normal 
operation without engine damage and is therefore largely switched off. 
28 However, the question as to whether and, if so, to what extent different 
considerations influence the interpretation of the concept of justified need is the 
subject of the interpretation of secondary EU law. This matter is reserved for the 
Court of Justice of the European Union.