Opinion of the Advocate General — ECLI:EU:C:2020:323
Date: 2020-04-30
Language of the case: French
Subject matter: Environment;Transport;Pollution
Procedure: Reference for a preliminary ruling
Origin: France

Summary technical presentation of the device by the lawyers representing X 
Company, as described in a legal note sent to the investigators ([…]): 
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45 Motor vehicle manufacturers […] must have obtained EU type approval before 
placing such vehicles on the market in the European Union. 
46 The regulations that must be observed include the Regulation 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 
(Regulation (EC) No 715/2007). 
47 According to Article 3(1) of Regulation (EC) No 692/2008, in order to receive an 
EC type-approval for a vehicle with regard to emissions, the manufacturer is to 
demonstrate that the vehicle complies with the test procedures specified in 
Annexes III to VIII, X to XII, XIV, XVI and XX to that regulation. 
48 According to point 2.5 of Annex III to Regulation (EC) No 692/2008, the 
emission limits applicable with respect to oxides of nitrogen are 180 mg/km 
(Table 1 of Annex I to Regulation (EC) No 715/2007) for Euro 5 vehicles and 80 
mg/km (Table 2 of Annex I to Regulation (EC) No 715/2007) for Euro 6 vehicles. 
[Or. 14]  
49 Technically, exhaust gas recirculation (EGR) is part of what are called internal 
engine measures. During the EGR operation, engine exhaust gases are introduced 
via a recirculation valve into the engine inlet system and replace part of the fuel. 
That results, in particular, in a reduction of the nitrogen oxides emissions. It is 
necessary to distinguish between EGR and the exhaust gas post-treatment. 
50 In the EU5 diesel engine [in question], there are two exhaust gases recirculation 
functioning modes: in exhaust gas recirculation mode 1 (EGR mode 1), the rate of 
exhaust gas recirculation (EGR rate) is relatively high, while the exhaust gas 
recirculation mode 0 (EGR mode 0) rate is lower. Since the EGR rate has an 
impact on the quantity of nitrogen oxides emissions, the emissions of nitrogen 
oxides may be considered to be higher in EGR mode 0 than in EGR mode 1. In 
order to switch from one EGR mode to the other, the NEDC prescribed for the test 
in laboratory conditions must be fully effective, with a small margin of tolerance 
(a maximum of plus or minus 1 to 2% of the values specified for the NEDC). If 
the vehicle goes through the whole of that NEDC, complying with distance and 
time from the outset, EGR mode 1 is active; otherwise the vehicle is automatically 
in EGR mode 0. 
51 In actual driving it is virtually impossible to complete the NEDC synthetic driving 
cycle, which was designed to be carried out exclusively in laboratory conditions. 
The simple fact of the constraints connected with traffic, safety, the taking into 
account of other road users, different driving habits, etc., makes it highly unlikely 
that anyone might complete the very artificial NEDC, made up of five precisely 
defined operating curves, in normal driving conditions. 
52 Consequently, given the precise and detailed specifications of the NEDC in 
relation to time, speed and distance, the NEDC is carried out only during the 
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synthetic driving cycle conducted in laboratory conditions on a dynamometer 
bench, away from [Or. 15] actual traffic. Thus, EGR mode 1 applies, in a manner 
of speaking, only to the test conducted in laboratory conditions, while the EGR 
mode 0 is active in normal driving conditions. 
The consequences drawn by X Company’s lawyers with respect to the 
abovementioned provisions of the European regulation  
53 The definition of ‘defeat device’ in Article 3(10) of Regulation (EC) No 715/2007 
evokes an effect of the device on every part of the emission control system that 
reduces the effectiveness of that system during normal vehicle operation and use. 
That, according to those lawyers, means that a manipulation/defeat device is 
present only where: 
(i) the measurement of certain parameters (for example, speed) entails: 
(ii) the deactivation of or, more generally, an effect on a component of the 
emission control system which: 
(iii) reduces the effectiveness of the emission control system in circumstances 
that one might reasonably expect to encounter in normal circumstances of the 
operation and use of the vehicle. 
54 A defeat device, as its name clearly indicates, must be regarded as a device 
causing a reduction in the effectiveness of the emission control system when 
certain parameters are reached in normal vehicle operation and use conditions. 
55 From the viewpoint of structure or intent, Article 5(2) of Regulation (EC) 
No 715/2007, and in particular the exceptions listed in the second sentence, 
confirm that the concept of manipulation device is based on the typical example of 
deactivation of part of the emission control system in normal vehicle operation 
and use conditions, which has the effect of reducing its effectiveness. 
56 In the context of the prohibition laid down in Article 5(2), subparagraphs (a) and 
(b) define certain cases in which the manipulation device is authorised [Or. 16] in 
exceptional circumstances. Those exceptions apply where: 
‘(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; 
(b) the device does not function beyond the requirements of engine starting.’ 
Those two exceptions relate to normal vehicle operation and use conditions. 
They allow a manipulation device to be used at certain specific stages of the 
normal operation of the vehicle. 
57 Conversely, that means that such a device is not permitted during other stages of 
normal vehicle operation. That is perfectly consistent with the literal interpretation 
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of the definition of ‘manipulation device’ reproduced above, which mentions only 
an effect on components of the emission control system that reduce the 
effectiveness of that system in normal vehicle operation conditions. 
58 The title of Article 5 of Regulation (EC) No 715/2007 illustrates the fact that that 
article lays down general vehicle requirements and also test requirements. 
Paragraphs 1 and 2 of Article 5 of Regulation (EC) No 715/2007 deal only with 
the operation and use of a vehicle in normal conditions. Under Article 5(1) of 
Regulation (EC) No 715/2007, the manufacturer is to equip its 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 that regulation and its 
implementing measures. 
59 The prohibition of the use of manipulation devices comes directly afterwards, that 
is to say, in the immediately following paragraph, in Article 5(2) of Regulation 
(EC) No 715/2007. Thus, the prohibition of those devices is indeed associated 
with the deactivation of the system ‘in normal conditions of use’. That 
interpretation follows from, in particular, the position which Article 5(2) of 
Regulation (EC) No 715/2007 occupies in the general structure of the regulation, 
as that paragraph provides clarification of paragraph 1 of Article 5, which 
immediately precedes it. [Or. 17]  
60 In addition, that intentional separation is again found in Article 5(3) of Regulation 
(EC) No 715/2007. Under paragraph 3, the Commission is to be responsible for 
adopting special provisions (that is to say, provisions aimed at providing 
clarification) relating to the specific procedures, tests and requirements for type 
approval, and also requirements for the implementation of paragraph 2, which are 
designed to amend non-essential elements of the regulation by supplementing it. 
The formulation underlines here the fact that a distinction must be drawn between, 
on the one hand, the vehicle test procedures and the type approval requirements 
and, on the other, the prohibition, laid down in Article 5(2) of Regulation (EC) 
No 715/2007, of the use of manipulation devices that reduce the effectiveness of 
the emission control systems. 
61 In short, the prohibition of the manipulation/defeat devices laid down in 
Regulation (EC) No 715/2007 applies to equipment which, in normal operation 
and use conditions and in certain special circumstances — for example above a 
certain speed or if the air conditioning or heating is switched on — deactivate a 
part of the emission control system (or modify its operation) and therefore reduce 
the effectiveness of that system in normal vehicle operation and use conditions. 
Application to the EGR system: there is no manipulation/defeat device  
62 In normal vehicle operation conditions, the EGR system does not reduce the 
effectiveness of the emission control system in certain particular circumstances 
(that is to say, it does not entail the ‘deactivation’ of that system). The situation 
which is typical of the presence of a manipulation device, in which for example 
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the emission control system is deactivated or its effectiveness reduced when the 
vehicle exceeds a certain speed, when the air conditioning is switched on or when 
another trigger threshold is reached, does not apply. 
63 Instead, in normal vehicle operation conditions, that is to say, after the engine 
starting stage, the EGR system operates in mode 0 without any impact on the 
components of the emission control system. EGR mode 1 [Or. 18] is activated 
only in the laboratory conditions of the synthetic driving cycle that is the New 
European Driving Cycle (NEDC). Those conditions do not exist in normal 
driving. 
64 Consequently, the prohibition criteria laid down in Article 5(1) of Regulation (EC) 
No 715/2007, that is to say, the deactivation of part of the emission control system 
in normal driving conditions, are not met. 
65 The prohibition laid down in Article 5(2) of Regulation (EC) No 715/2007 does 
not cover the detection methods of the cycle. 
66 It is true that the EGR system, with its operating modes 0 and 1, might be 
criticised as being a ‘cycle detection method’ the objective of which is to 
influence the operation of the emission control system with a view to increasing 
(in part, that is to say, solely as concerns emissions of nitrogen oxides) its 
effectiveness in mode 1. 
67 However, that does not warrant the inclusion of that device — which is 
technically different — in the scope of the term ‘manipulation device’. And there 
is even less reason to apply without any other form of process too broad an 
interpretation to the ‘de lege data’ (‘in application of the law currently in force’) 
rule to bring the detection of the cycle within the scope of the term ‘manipulation 
device’, and to do so for political reasons. 
68 By virtue of the rule of law, the prohibition of certain manipulation devices laid 
down in Article 5(2) of Regulation (EC) No 715/2007 cannot therefore be applied 
by analogy to cycle detection methods (which must be distinguished from 
manipulation devices) in order to fill a (supposed) gap in the law or to compensate 
for present uncertainties in the legislation or its interpretation, to the detriment of 
manufacturers. 
69 The extension of the current provisions to the cycle detection methods, which is 
not provided for in the prohibition laid down in Article 5(2) of Regulation (EC) 
No 715/2007 [Or. 19] and contradicts the elementary legal principle that rules 
must be clear and stable, is also precluded because, in the legislative framework 
currently in force, there is always — and inevitably — a (sometimes considerable) 
gap between emissions measured in the test laboratory and emissions in actual 
driving. 
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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 
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’? 
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 [Or. 20] 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? 
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 
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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 
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