Opinion of the Advocate General — ECLI:EU:C:2021:758
Date: 2021-09-23
Language of the case: German
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of its 
judgment: 
‘1. The application of a ‘temperature window’ to reduce at low outside 
temperatures the exhaust gas recovery used in a vehicle to reduce nitrogen oxide 
emissions (NOx) is a (prohibited) defeat device within the meaning of Article 5(2) 
and the tenth subparagraph of Article 3 of Regulation No 715/2007. The degree to 
which exhaust gas recovery is reduced is immaterial, as Article 5(2) does not 
differentiate the tenth subparagraph of Article 3 of Regulation No 715/2007 by the 
extent of the change to the pollution control system. [Or. 8] 
2. Such exhaust gas devices are not permitted as an exemption under 
Article 5(2)(a) of Regulation No 715/2007 to protect the engine where other state-
of-the-art technical solutions are available, regardless of whether they are 
considerably more expensive. 
3. In enacting the information requirement in the ninth subparagraph of 
Article 3 of the Implementing Regulation (Regulation (EC) No 692/2008), the 
legislature has also clarified for vehicles that there is no justification for an 
additional temperature window at low temperatures. 
4. Any such defeat device that operates almost continuously (at outside 
temperatures below 7 degrees Celsius) and is thus contrary to the objectives of 
Regulation No 715/2007 is unnecessary within the meaning of Article 5(2)(a) of 
the Regulation.’ 
The Landesgericht Klagenfurt (Regional Court, Klagenfurt) concurs with that 
summary. The Regional Court, Klagenfurt takes the view that it follows from the 
tenth subparagraph of Article 3 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 that the 
‘temperature window’ constitutes a prohibited defeat device within the meaning of 
that Regulation, in particular as in most countries of the European Union, and in 
GSMB INVEST 
 
7 
Austria, Germany and Switzerland in particular, the ambient temperature during 
the year is generally below 15 degrees Celsius and, due to their geographical 
location, vehicles frequently travel in areas at an altitude of over 1 000 m, 
meaning that these conditions correspond to ‘normal vehicle operation and use’ as 
set out in the tenth subparagraph of Article 3 of Regulation No 715/2007. The 
Regional Court, Klagenfurt finds that the exemption allowed under the second 
sentence of Article 5(2)(a) of Regulation No 715/2007 to protect the engine does 
not, therefore, provide a legal basis for defeat devices activated during ‘normal’ 
use of the vehicle. That court takes the view that this applies in particular to 
vehicle operation in ambient temperatures of below 15 degrees Celsius. It adds 
that the ninth subparagraph of Article 3 of the Implementing Regulation 
(Regulation (EC) No 692/2008 specifies the time within which efficient operation 
must be guaranteed following a cold start. According to that provision, [Or. 9] the 
NOx aftertreatment device must reach a sufficiently high temperature for efficient 
operation within 4 seconds after a cold start at -7 °C. In that context, the approval 
authority should not grant type-approval if the information provided is insufficient 
to demonstrate that that requirement is fulfilled. The Regional Court, Klagenfurt 
holds that it follows from that information requirement that the legislature has 
clarified that there is no justification for a further temperature window in addition 
to that exemption. According to the Regional Court, Klagenfurt, the ‘temperature 
window’, which guarantees efficient operation of pollution control devices only 
between 15 and 33 degrees Celsius and only below an altitude of 1 000 m, 
meaning that they do not generally operate fully functionally during the year in 
Europe under normal conditions of use, in particular in Austria, does not fulfil the 
requirement of Article 5(1) of Regulation No 715/2007 and is a prohibited defeat 
device. 
[…] 
Klagenfurt, 19 February 2020 
[…] [remarks]