62016CC0668
OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 11 April 2018 (
1
)
Case C‑668/16
European Commission
v
Federal Republic of Germany
(Failure of a Member State to fulfil obligations — Directive 2007/46/EC — Responsibility of the national authorities — Measures relating to the conformity of vehicles to technical requirements — Balancing lack of conformity and safety risks — Obligations of the manufacturer — Penalties — Directive 2006/40/EC — Limits on emissions from the air conditioning systems of motor vehicles — Circumvention of the directive)
1.
In this matter, the European Commission has brought an action before the Court, pursuant to the second paragraph of Article 258 TFEU, seeking a declaration that the Federal Republic of Germany has failed to fulfil its obligations under certain provisions of the uniform approval system for vehicles, and in particular Articles 12, 30 and 46 of 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 (
2
) (‘the Framework Directive’). Furthermore, the Commission claims that the Federal Republic of Germany has acted in a manner which constitutes circumvention of Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC (
3
) (‘the Air Conditioning Systems Directive’).
2.
In particular, the present action asks the Court to rule on the discretion granted to the Member States within the ex post control system of vehicle conformity laid down by the Framework Directive, the penalties which the Member States are obliged to impose on a manufacturer who has failed to fulfil the obligations on it, and the scope of the concept of ‘type of vehicle’, as set out in the Framework Directive.
I. Regulatory framework
A.
Air Conditioning Systems Directive
3.
Article 5(4) of the Air Conditioning Systems Directive provides: ‘With effect from 1 January 2011 Member States shall no longer grant EC type-approval or national type-approval for a type of vehicle fitted with an air conditioning system designed to contain fluorinated greenhouse gases with a global warming potential higher than 150.’
B.
The Framework Directive
4.
Recital 3 of the Framework Directive states as follows: ‘The technical requirements applicable to systems, components, separate technical units and vehicles should be harmonised and specified in regulatory acts. Those regulatory acts should primarily seek to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use.’ The first sentence of recital 14 of the Framework Directive further clarifies: ‘The main objective of the legislation on the approval of vehicles is to ensure that new vehicles, components and separate technical units put on the market provide a high level of safety and environmental protection.’ Recital 17 is worded as follows: ‘This Directive constitutes a set of specific safety requirements within the meaning of Article 1(2) of Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety (“Directive 2001/95”). Therefore, it is important to establish provisions to ensure that, in case a vehicle presents a serious risk for consumers resulting from the application of this Directive or of the regulatory acts listed in Annex IV, the manufacturer has taken effective protective measures, including the recall of vehicles.’
5.
Article 3(17) defines ‘type of vehicle’ in the following terms: “‘type of vehicle’ means vehicles of a particular category which do not differ in at least the essential respects specified in Section B of Annex II. A type of vehicle may contain variants and versions as defined in Section B of Annex II’.
6.
Article 4(1) provides: ‘Member States shall ensure that manufacturers applying for approval comply with their obligations under this Directive’ and goes on to specify, in paragraphs (2) and (3) respectively, that ‘Member States shall approve only such vehicles, systems, components or separate technical units as satisfy the requirements of this Directive’ and ‘Member States shall register or permit the sale or entry into service only of such vehicles, components and separate technical units as satisfy the requirements of this Directive’.
7.
Article 6(6), which relates to the procedures to be followed for EC type-approval, provides: ‘The manufacturer shall submit the application to the approval authority. Only one application may be submitted in respect of a particular type of vehicle and it may be submitted in only one Member State. A separate application shall be submitted for each type to be approved.’
8.
Paragraph 1 of Article 12, which relates to the conformity of production arrangements, provides that: ‘The Member State which grants an EC type-approval shall take the necessary measures in accordance with Annex X to verify, if need be in cooperation with the approval authorities of the other Member States, that adequate arrangements have been made to ensure that production vehicles, systems, components or separate technical units, as the case may be, conform to the approved type.’ Paragraph 3 thereof states: ‘When a Member State which has granted an EC type-approval establishes that the arrangements referred to in paragraph 1 are not being applied, deviate significantly from the arrangements and control plans agreed, or have ceased to be applied, although production is not discontinued, that Member State shall take the necessary measures, including the withdrawal of the type-approval, to ensure that the conformity of production procedure is followed correctly.’
9.
Article 17(1) provides: ‘An EC type-approval of a vehicle shall cease to be valid in any of the following cases:
…
(b)
production of the approved vehicle is definitively discontinued voluntarily;
…’
10.
Article 29(1), first sentence, provides: ‘If a Member State finds that new vehicles, systems, components or separate technical units, albeit in compliance with the applicable requirements or properly marked, present a serious risk to road safety, or seriously harm the environment or public health, that Member State may, for a maximum period of six months, refuse to register such vehicles or to permit the sale or entry into service in its territory of such vehicles, components or separate technical units.’
11.
Article 30(1) states: ‘If a Member State which has granted an EC type-approval finds that new vehicles, systems, components or separate technical units accompanied by a certificate of conformity or bearing an approval mark do not conform to the type it has approved, it shall take the necessary measures, including, where necessary, the withdrawal of type-approval, to ensure that production vehicles, systems, components or separate technical units, as the case may be, are brought into conformity with the approved type. The approval authority of that Member State shall advise the approval authorities of the other Member States of the measures taken.’
12.
Article 32 provides:
‘1.   Where a manufacturer who has been granted an EC vehicle type-approval is obliged, in application of the provisions of a regulatory act or of Directive 2001/95/EC, to recall vehicles already sold, registered or put into service because one or more systems, components or separate technical units fitted to the vehicle, whether or not duly approved in accordance with this Directive, presents a serious risk to road safety, public health or environmental protection, he shall immediately inform the approval authority that granted the vehicle approval thereof
2.   The manufacturer shall propose to the approval authority a set of appropriate remedies to neutralise the risk referred to in paragraph 1. The approval authority shall communicate the proposed measures to the authorities of the other Member States without delay.
…’
13.
Article 46 is worded as follows: ‘Member States shall determine the penalties applicable for infringement of the provisions of this Directive, and in particular of the prohibitions contained in or resulting from Article 31, and of the regulatory acts listed in Part I of Annex IV and shall take all necessary measures for their implementation. The penalties determined must be effective, proportionate and dissuasive. Member States shall notify these provisions to the Commission no later than 29 April 2009 and shall notify any subsequent modifications thereof as soon as possible.’
C.
German law
14.
Paragraph 7 of the EG-Fahrzeugsgenehmigungsverordnung (Regulation on EC type-approval for vehicles; ‘the EG-FGV’) of 3 February 2011, as most recently amended by Paragraph 4 of the Regulation of 19 October 2012, provides: ‘EC type-approval shall expire when new requirements in any regulatory act become mandatory for the registration, sale or entry into service of new vehicles within the meaning of Article 3(1) of Directive 2007/46/EC, and it is not possible to update the approval. It shall also expire when production of the type of approved vehicle is definitively discontinued. The manufacturer shall notify the Kraftfahrt-Bundesamt [the Federal Office for Motor Vehicles; “the KBA”] that production has been discontinued.’
15.
Paragraph 25 of the EG-FGV provides:
‘(1)   If the KBA finds that vehicles, systems, components or separate technical units do not conform to the approved type, it can take the necessary measures within the meaning of Directives 2007/46/EC, 2002/24/EC and 2003/37/EC, applicable depending on the type, to ensure that production conforms to the approved type.
(2)   In order to make good deficiencies, and to guarantee that vehicles already put into service, components or separate technical units conform, the KBA can adopt secondary provisions retroactively.
(3)   The KBA may withdraw or revoke approval, in whole or in part, in particular where it is found that
1.
vehicles with a certificate of conformity or components or technical units with a prescribed designation do not conform to the approved type,
2.
vehicles with a certificate of conformity or components or technical units pose a significant risk to road safety, public health and the environment,
3.
the manufacturer does not have an effective system for monitoring the conformity of production or not does not use it in the manner intended,
or that
4.
the holder of the type-approval fails to comply with the requirements associated with that approval.’
II. Facts and pre-litigation procedure
16.
The Air Conditioning Systems Directive, which has been in force since July 2006, provides in particular that the air conditioning systems of all types of vehicles approved after 1 January 2011 are to use coolant with a global warming potential not higher than 150. However, it does not prescribe a specific type of refrigerant
17.
In that context, European vehicle manufacturers agreed, as part of an international standardisation process under way in 2009, to use the coolant designated R1234yf (‘refrigerant R1234yf’). In 2012 an interruption in the supply of that coolant as a consequence of the destruction of the relevant production sites resulting from the Fukushima tsunami made it difficult to apply effectively the requirements contained in the Air Conditioning Systems Directive. As a reaction to that event, the Commission, in response to the requests for clarification made in this regard by the national authorities, adopted a communication by which it informed the Member States that it would not institute any infringement proceedings for vehicles failing to conform to the directive at least until the refrigerant R1234yf was available again, but specified that this moratorium would not be extended in any event beyond 31 December 2012. (
4
) This meant that after that date manufacturers would no longer be able to use the coolant which they had used hitherto, that is to say the coolant designated R134a (‘refrigerant R134a’), whose global warming potential was significantly above the limit imposed by the Air Conditioning Systems Directive. (
5
)
18.
At the beginning of January 2013, the conditions for the supply of the refrigerant R1234yf normalised.
19.
On 3 March 2011, 8 June 2011 and 18 October 2012 the KBA, in its capacity as the German authority competent for the type-approval of vehicles, approved new vehicle types 246, 176 and 117, at the request of Daimler AG (‘Daimler’). Since they fell within the temporal scope of the Air Conditioning Systems Directive, those type-approvals could not be granted if the types in question had not used the refrigerant compatible with the requirements thereof (R1234yf).
20.
Subsequently, Daimler raised doubts as to the safety of the use of the refrigerant R1234yf in types 246, 176 and 117 and therefore expressed its intention to use, as from January 2013, refrigerant R134a instead of refrigerant R1234yf. In autumn 2012 the company then recalled around 700 vehicles of those types and replaced the refrigerant R1234yf with the refrigerant R134a.
21.
In November 2012, just before the end of the moratorium adopted by the Commission, the German authorities asked the Commission to extend by six months the period of non-application of the requirements of the Air Conditioning Systems Directive on account of the need to verify again the safety of the only refrigerant available on the market which was compatible with that directive.
22.
The Commission accordingly invited all the Member States to provide information on compliance with the Air Conditioning Systems Directive in their respective territories. In their response to that request, the German authorities confirmed that only one manufacturer with German type-approval (Daimler) produced and sold vehicles which did not conform to the requirements for the approval thereof.
23.
From January to June 2013, Daimler marketed 133713 vehicles of the types 246, 176 and 117 using the refrigerant R134a, even though those types had been approved after 1 January 2011 and were therefore obliged to use a refrigerant conforming to the Air Conditioning Systems Directive.
24.
On 3 January 2013, Daimler was invited by the KBA to set out, within 15 days, the measures taken to re-establish conformity with that directive. Responding to the request in question on 15 January 2013, Daimler presented an action plan to find a technical solution to resolve, by 15 June 2013, the safety problems arising from the use of the refrigerant R1234yf in its vehicles. On 4 March 2013, the KBA ordered Daimler to take the appropriate measures to bring the production of types 246, 176 and 117 back into conformity with the Air Conditioning Systems Directive. If Daimler failed to do so, the KBA threatened to withdraw approval from 30 June 2013. On 26 June 2013, Daimler informed the KBA that it had definitively dropped production of types 246, 176 and 117 as the search for a technical solution to resolve the safety problems described above had been unsuccessful.
25.
Subsequently, the KBA asked Daimler, on several occasions between 1 January and 26 June 2013, to bring the 133713 vehicles sold back into conformity. At the end of 2015, Daimler informed the KBA that it had developed the necessary technical solutions. However, the Commission points out that to date the conformity of those vehicles to the Air Conditioning Systems Directive has not been re-established and the approval has not been withdrawn.
26.
On 17 May 2013, the KBA granted an application by Daimler for extension of the approved vehicle type 245G (compressed natural gas vehicle) to new compressed natural gas variants of the B-Class. Since it was originally approved in 2008, the type 245G was not subject to the obligation to use a refrigerant compatible with the Air Conditioning Systems Directive. The extension of the type-approval of that type was then notified to the Commission by letter of 22 May 2013. Subsequently, on 3 June 2013, the KBA granted a further application for extension of that approved type which Daimler submitted in relation to certain models of the new B-Class, the A-Class and the CLA-Class.
27.
The Commission considers that those applications for extension actually related to vehicles of the types 246, 176 and 117, the production of which Daimler had claimed to have ceased voluntarily. From the Commission’s point of view, the extensions for the type 245G granted by the KBA allowed Daimler to continue to produce and market these types of vehicles, without having to fit them with the refrigerant compatible with the Air Conditioning Systems Directive.
28.
The Commission sent the Federal Republic of Germany a letter seeking clarification on 10 June 2013, and subsequently a letter of formal notice on 27 January 2014. The letter of formal notice claimed that between January and June 2013 the German authorities permitted 133713 vehicles to be manufactured and marketed in breach of the requirements concerning appropriate type-approval, failed to impose penalties on the manufacturer in question, and circumvented the Air Conditioning Systems Directive.
29.
The Federal Republic of Germany replied to the letter of formal notice on 26 March 2014. With regard to the non-conformity of the vehicles to the requirements relating to the approval thereof, it recalled that the competent national authorities have discretion under the Framework Directive and further maintained that the need to observe the principle of proportionality prevented them from taking specific measures. In addition, the Federal Republic explained that the evidence furnished by Daimler suggested that use of the refrigerant R1234yf constituted a safety risk. In its view, however, the lack of conformity of the vehicles of types 246, 176 and 117 had only a limited impact on the climate protection objective pursued by the Air Conditioning Systems Directive. As regards the alleged circumvention of the directive, the Federal Republic of Germany argued that the KBA had had to grant the application for extension of the approval of type 245G since that authority had no discretion once it had been established that the conditions laid down by the directive were satisfied. Furthermore, it had to be borne in mind that the validity of the approvals of types 246, 176 and 117 had ceased when Daimler shut down production thereof.
30.
The Commission then sent a reasoned opinion to the Federal Republic of Germany on 25 September 2014 in which it confirmed the objections set out in the letter of formal notice.
31.
The Federal Republic replied by letter of 25 November 2014 in which it essentially reiterated the arguments put forward in response to the letter of formal notice.
III. The procedure before the Court of Justice and the forms of order sought by the parties
32.
The Commission brought the present action on 22 December 2016. The Federal Republic of Germany lodged its defence on 15 March 2017. The parties then submitted a reply and a rejoinder on 26 April and 12 June 2017 respectively.
33.
At the hearing held on 11 January 2018 the Commission and the German Government presented oral argument and replied to the questions put by the Court.
34.
The Commission claims that the Court should declare that the Federal Republic of Germany has committed a threefold infringement of its obligations under the Framework Directive and Air Conditioning Systems Directive; (i) by failing to take the measures necessary to re-establish the conformity of vehicles of types 246, 176 and 117 to their approved types (Articles 12 and 30 of the Framework Directive); (ii) by failing to take the measures necessary to apply penalties (Article 46, in conjunction with Articles 5 and 18, of the Framework Directive); and (iii) by granting, on 17 May 2013, an application by Daimler for an extension of the approval for vehicle type 245G to vehicles which had already been granted a different type-approval to which the new requirements of the Air Conditioning Systems Directive apply, which, in the view of the Commission, constitutes circumvention of that directive. The Federal Republic of Germany contends that the Court should dismiss the Commission’s action.
IV. Legal analysis
A.
Infringement of Articles 12 and 30 of the Framework Directive
1. Arguments of the parties
35.
In the application, the Commission recalls, first of all, that a combined reading of Article 4(2) and Annex IV to the Framework Directive, and Article 5(4) of the Air Conditioning Systems Directive, indicates that, in the present case, the vehicle types 246, 176 and 117 could be granted EC type-approval only if the global warming potential of the refrigerant used in their systems did not exceed 150. Consequently, from the time at which the production of vehicles of these types switched to using a refrigerant with a higher global warming potential, the new vehicles produced, which the Commission puts at 800000 units in the period between 1 January 2013 and the bringing of the action, (
6
) no longer conformed to the approved type. In those circumstances, the KBA was obliged, in the view of the Commission, to ensure that production and the new vehicles produced are brought back into conformity. In particular, that authority had, on the one hand, to guarantee that the refrigerant used in production did not have a global warming potential greater than 150 and, on the other, to ensure that the vehicle types 246, 176 and 117, manufactured and marketed using an unauthorised refrigerant, returned to having a refrigerant conforming to the requirements relating to their approved type. However, despite being informed of that lack of conformity, the KBA did not adopt the measures necessary to remedy it, which, in the view of the Commission, constitutes an infringement of Articles 12 and 30 of the Framework Directive. (
7
) In particular, the Commission emphasises that the KBA not only failed to withdraw the type-approval but did not even use one of the alternatives available, such as, for example, recall and repair of the vehicles concerned. The threat to withdraw the type-approval actually expressed by the KBA certainly did not constitute an appropriate measure under Articles 12 and 30 of the Framework Directive.
36.
In response to the German authorities’ argument that the KBA could not have taken more effective measures on account of the doubts over the use of the refrigerant R1234yf in vehicles of types 246, 176 and 117, the Commission observes that the Framework Directive does not contain anything constituting an exception or a justification on the basis of which the Member States may derogate from compliance with the harmonised technical requirements where there are doubts as to their appropriateness. On the contrary, that directive places on the Member States an unconditional obligation to ensure compliance with all the technical requirements relating to safety and environmental protection. A derogation is laid down only in the case provided for in Article 29 of the Framework Directive.
37.
In its defence, the Federal Republic of Germany contests above all the alleged infringement of Article 12 of the Framework Directive. According to its interpretation, the verification which that provision entails does not relate to conformity to the approved type of the vehicles themselves, but the mere existence of measures which are theoretically capable of guaranteeing such conformity. Taking the view that the Federal Republic of Germany was obliged to verify only Daimler’s compliance with the quality control of production, the defendant itself considers that there is nothing to show that that control did not work, thus rejecting the argument that a failure to verify the quality control system was an automatic consequence of a lack of conformity.
38.
Similarly, the Federal Republic of Germany contests the plea alleging infringement of Article 30 of the Framework Directive. The starting point of its reasoning is that that rule explicitly confers discretion on the competent authorities of the Member States. Where there is a lack of conformity, those authorities are not obliged, as a consequence, immediately to withdraw approval, but must instead act progressively (‘shall take the measures necessary’) and withdraw only as a last resort (‘including, where necessary’). In short, the Federal Republic of Germany considers that the wording of Article 30 requires that the intervention of the competent authority complies with the principle of proportionality. For this reason, no criticism can be levelled at the KBA which asked Daimler to submit to it an action plan with proposals aimed at solving the problem and threatened to withdraw approval only if that was not done within the fixed period. Withdrawal could not have been ordered since Daimler ceased production of the vehicles in question before that period expired.
39.
Responding to the Commission’s criticism that KBA had initially adopted measures to analyse the risks arising from the use of the refrigerant R1234yf, the Federal Republic of Germany emphasises that the KBA could not rule out, at that time, the existence of a serious risk to safety within the meaning of Directive 2001/95. In this regard, the defendant notes that the Framework Directive does not stipulate what is to happen to non-conforming vehicles produced and manufactured until the approval is withdrawn. Nor could Article 32, which provides for withdrawal, be invoked, since it applies only to vehicles which ‘[present] a serious risk to road safety, public health or environmental protection’. In the circumstances in question, the non-conformity of vehicles of types 246, 176 and 117 did not in fact entail, according to the arguments put forward by the Federal Republic of Germany, a major risk to road safety and public health, and had a merely marginal, unmeasurable impact on the environment.
40.
In the light of the information available to it, the KBA had then acted, in the view of the Federal Republic of Germany, within the limits of its discretion, by striking a balance between the non-conformity and the safety risks, in full compliance with the principle of proportionality. The KBA had studied the potentially hazardous situation and carried out its own checks which, although they did not confirm the need to act in good time on account of a serious risk within the meaning of Directive 2001/95, did reveal the danger of ignition or exposure to hydrogen fluoride. Subsequently, after Daimler had announced that it had started using the refrigerant R1234yf in its vehicles from 20 October 2015, the KBA made written requests to that company regarding the safety measures which had allowed such use. Satisfied with the replies it received, the KBA asked in December 2015 whether the measures in question could also be applied to the 133713 vehicles already marketed in order to re-establish their conformity to the type-approval. In response to Daimler’s replies, which highlighted the problems in eliminating the refrigerant and the considerable risks arising from the need to modify sensitive components in safety terms, the KBA delegated a technical service to assess the feasibility of implementing conversion measures. Having been informed by that service that a clear evaluation was not possible in the absence an overall control procedure, the KBA requested from Daimler, in July 2016, detailed information on the method for assessing and analysing the risks in the factory conversion of the vehicles concerned. The technical evaluation of the analyses submitted by Daimler in September 2016 has not yet been completed. Once it is completed, the KBA intends, if the result is negative, to impose an order on Daimler to restore the conformity.
41.
In the reply, the Commission claims firstly that Article 12 of the Framework Directive does not merely require the adoption of appropriate measures to identify any cases of non-conformity of production, but also seeks to safeguard the conformity of production by ensuring that the necessary measures are taken where such cases are actually identified. As regards Article 30 of the Framework Directive, the Commission maintains that the considerations relating to proportionality set out by the defendant do not justify it not yet having taken the necessary measures to require Daimler to re-establish compatibility. More specifically, the fact that the Federal Republic of Germany has still not ordered restoration of conformity, and confined itself to merely contemplating an order, exceeds the discretion afforded by the Framework Directive.
42.
The Commission further observes that Articles 12 and 30 of the Framework Directive leave the Member States no discretion as regards compliance with the harmonised technical requirements when adopting the measures necessary to restore conformity. From this point of view, striking a balancing between the climate change impacts of the lack of conformity and the alleged safety risks arising from the use of the refrigerant compatible with the Air Conditioning Systems Directive is, in the view of the Commission, contrary to those articles.
43.
In its rejoinder, the Federal Republic of Germany reiterates that the choice relating to the ‘necessary measures’ required by Article 30 of the Framework Directive in the event of lack of conformity necessarily entails striking a balance between all the circumstances of the case, including those relating to safety and human health. In essence, the KBA had exercised its discretion correctly and acted in an appropriate and effective manner.
2. Assessment
44.
An examination of the first plea requires, in my view, a number of brief introductory observations designed to illustrate the legal context, characterised by a substantial level of technicality, which forms the background to the dispute before the Court.
(a) Introductory remarks
45.
The legislation at issue in the present case forms part of the process of harmonising national provisions on technical standards and type-approval of motor vehicles initiated by the European Economic Community in the 1960s, with the aim of implementing the free movement of goods in the automotive sector. To that end, the European legislature adopted a methodology which consists in the incorporation of all the technical standards on the registration, sale and placing on the market of vehicles into a framework directive (initially Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers, (
8
) subsequently replaced by the current Framework Directive), complemented by a number of regulatory acts (‘regulatory acts’) to which the Framework Directive refers. (
9
)
46.
The directive guarantees compliance with the harmonised technical standards by means of a double control. The first is effected at the start of production (‘ex ante control’), whilst the second is effected after that start (‘ex post control’). The ex ante control, carried out on a prototype representative of the vehicle concerned, consists in verification of the conformity of that prototype to the harmonised technical standards. (
10
) Where that control has a positive outcome, the Member States grant an EC type-approval to the type of vehicle in question, the function of which is to provide the manufacturer with the legal certainty that all the products conforming to the approved type can be lawfully marketed. Since compliance with the harmonised technical standards has already been assessed and certified during the type-approval, the ex post control is limited to the conformity of production and the new vehicles produced to the type-approval of the vehicle concerned.
47.
The first plea raised by the Commission in the present case relates solely to this form of control. More specifically, the Commission complains of the inaction of the Federal Republic of Germany when faced with the fact that Daimler, after having been granted type-approval for types 246, 176 and 117, had produced vehicles which did not conform fully to the harmonised technical standards applicable to those types, since it was in breach of one of the regulatory acts, that is to say the Air Conditioning Systems Directive. In the face of such an infringement by Daimler the KBA should have reacted, in the view of the Commission, in accordance with Article 12 of the Framework Directive in order to re-establish conformity to the approved type of the production of the manufacturer concerned, and in accordance with Article 30 thereof to restore conformity to the approved type of the vehicles already produced.
48.
Since the Federal Republic of Germany has, in its written submissions, raised separate objections in relation to the provisions which have allegedly been infringed, I consider it appropriate to divide consideration of the merits of the first plea into two parts.
(b) Failure to restore conformity of the production
49.
Article 12 of the Framework Directive (‘Conformity of production arrangements’), the content of which is set out in more detail in Annex X thereto, places a threefold obligation on Member States.
50.
The first paragraph provides that at the time type-approval is granted the Member State is obliged to adopt the ‘measures necessary’ to verify that the applicant manufacturer has made adequate arrangements to ensure that the vehicles produced conform to the approved type. According to Annex X, those arrangements consist of an assessment of quality management systems (‘initial assessment’), in accordance with the Guidance on the planning and conduct of assessment contained in harmonised standard ISO 10011, 1991, (
11
) and verification of the approval subject and product-related controls (‘product conformity arrangements’), in accordance with paragraph 2.2 (‘the EC type-approval authority of a Member State … must verify the existence of adequate arrangements and documented control plans, to be agreed with the manufacturer for each approval, to carry out at specified intervals those tests or associated checks necessary to verify continued conformity with the approved type including specifically, where applicable, tests specified in the separate directives or regulations’).
51.
The second paragraph provides that after type-approval has been granted the Member State must take the necessary steps to verify, once production has been launched, whether the arrangements referred to in paragraph 1 continue to be adequate and that the vehicles continue to conform to the approved type.
52.
The third paragraph governs the situation where the arrangements referred to in paragraph 1 are not being applied, deviate significantly from those agreed, or have ceased to be applied, clarifying that in that case the Member State is obliged to take the necessary measures, including the withdrawal of the type-approval, to ensure that the conformity of production procedure is followed correctly.
53.
The arguments put forward by the Federal Republic of Germany in its defence relate only to the first paragraph of Article 12. In this regard, the defendant contends that the nature of the obligation which that paragraph imposes on the Member States differs from that which the Commission outlines in the application. In particular, the Member States are not obliged to ensure the absence of any non-conformity of the vehicles produced, but merely to verify the existence of measures capable of ensuring conformity of the production. In the view of the Federal Republic of Germany, no complaints can be levelled against it in the present case since there is no proof that Daimler’s quality control did not work. On the contrary, the KBA was informed from the outset that there was a lack of conformity in vehicles of the types 246, 176 and 117 due to the use of the refrigerant R134a instead of the refrigerant R1234yf.
54.
I do not doubt that the first paragraph of Article 12, if examined separately, can be interpreted in the sense advocated by the Federal Republic of Germany. However, the fact remains that it is, as just illustrated above, only one component of the overall production control system defined in Article 12.
55.
Therefore, if the provision at issue is examined as a whole, it is clear that what the Member States are required to do is adopt not only measures to verify (
12
) the existence of differences of conformity of production but also the necessary measures to re-establish (
13
) the conformity thereof.
56.
The main evidence for that is to be found, as the Commission observed briefly in its reply, in the wording of Article 12(3). The obligation to take ‘the necessary measures’ which that paragraph places on the Member States has as a mere prerequisite verification of the existence of such divergence (‘[w]hen … [it] establishes that the arrangements referred to in paragraph 1 are not being applied, deviate significantly from the arrangements and control plans agreed, or have ceased to be applied’), whereas its purpose is undoubtedly to restore the conformity of production in fact (‘to ensure that the conformity of production procedure is followed correctly’).
57.
In the light thereof, there is no doubt that Article 12 is to be regarded as having been infringed in the present case. The failure by Daimler to make, as from 1 January 2013, adequate arrangements to ensure that the production of vehicles of the approved types 246, 176 and 117 conform should have led the KBA, as the competent authority, to take the necessary measures to restore conformity.
58.
In my view, the first part of the plea alleging failure to fulfil obligations relating to the infringement of Article 12 of the Framework Directive by the Federal Republic of Germany should therefore be upheld.
(c) Failure to bring the vehicles already produced into conformity
59.
Article 30 of the Framework Directive (‘vehicles, systems, components or separate technical units not in conformity with the approved type’) governs the situation where the system for monitoring the conformity of production has not worked properly, with the result that the vehicles produced by the manufacturer do not conform to their approved type. In that case, the article in question provides that the Member State which has granted type-approval is obliged to take the necessary measures to re-establish conformity to the approved type, including withdrawal of the approval itself.
60.
I would point out first of all that the issue of infringement of Article 30 of the Framework Directive arises in the present case with regard to the 133713 vehicles of types 246, 176 and 117 produced and placed on the market by Daimler between 1 January and 26 June 2013 (or, according to the Commission, the around 800000 vehicles produced and placed on the market between 1 January 2013 and the date of the application) even though they did not conform to their type-approval on account of the use of refrigerant R134a instead of the refrigerant compatible with the Air Conditioning Systems Directive (R1234yf). The reason why those vehicles do not conform is that Daimler was satisfied that the use of refrigerant R1234yf posed a serious risk to safety and had informed the KBA thereof.
61.
It is common ground between the parties that the KBA’s response to that lack of conformity, set out at points 24 to 25 of this Opinion, did not result in the adoption of any of the measures for restoring compliance provided for in German legislation implementing Article 30 of the Framework Directive (Paragraph 25 of the EG-FGV), such as withdrawal of approval, recall and repair of the vehicles concerned, or the imposition of ancillary provisions. On the contrary, after an initial threat to withdraw approval (with a relevant time limit to remedy the lack of conformity), the KBA merely entered into dialogue with Daimler to verify the possibility of developing technical solutions to allow the use of the refrigerant R1234yf in the vehicles concerned without any risks to safety. (
14
)
62.
According to the Federal Republic of Germany, that response by KBA was dictated by the need to act in accordance with the principle of proportionality, which is clear from the wording of Article 30 of the Framework Directive (‘necessary measures’). In the present circumstances the withdrawal of approval, which is in no way required by that provision (‘including, where necessary’), would have been, in the view of the defendant, a disproportionate response, given the relatively minor non-conformity in the vehicles of types 246, 176 and 117.
63.
In order to determine whether the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the Framework Directive, it is first necessary to ascertain whether it has any discretion under that article and, if so, what the scope of that discretion is.
64.
However, whilst acknowledging that the general reference to the ‘necessary measures (
15
) to ensure that production vehicles … are brought into conformity with the approved type’ means that the provision under examination confers on the competent authorities of the Member States some discretion in choosing the measure to be taken, I agree with the Commission that that discretion does not allow those authorities to choose beyond the range of measures capable of re-establishing conformity. (
16
)
65.
In my view, this conclusion is supported by two primary observations.
66.
The first relates to the wording of Article 30. Although in different contexts from that of the directives at issue, the Court has already made it clear that the use of the wording ‘necessary measures’, without further clarification as to the specific substance of the measures to be taken to ensure the objective laid down (certainly not uncommon in the wording of EU regulatory acts), allows Member States to choose the measure to be taken only from those which allow that objective to be attained. (
17
)
67.
The second, more relevant, plea is based on the fact, as the Commission rightly pointed out in its reply, that conferring on the competent authorities of the Member States broader discretion, which takes no account of attaining the objective of re-establishing conformity to the approved type, would be tantamount to depriving the uniform system of approval defined by the combined provisions of the Framework Directive and the regulatory acts of
any effectiveness. (
18
) The existence of such discretion would imply that the competent national authorities have the power, when confronted with a lack of conformity, to assess the importance which they attach to compliance with the technical requirement in question in the light of the facts and consequently to decide accordingly whether or not to act to restore the conformity of the vehicles concerned to the approved type. However, an interpretation which has the effect of leaving to those national authorities the decision on which technical requirements among those contained in regulatory acts must be complied with would run counter to the effectiveness of the uniform system of type-approval as that effectiveness depends on compliance with all (
19
) the harmonised technical requirements contained in the regulatory acts listed in Annex IV to Framework Directive.
68.
In short, a correct interpretation of Article 30 of the Framework Directive, which takes into account both the wording and the effectiveness of that provision, must acknowledge that the discretion granted to the national authorities cannot disregard the obligation to attain the outcome laid down, that is to say to restore the conformity of the vehicles concerned to their type-approval.
69.
In the present case, whilst it is true that withdrawal of approval was not to be considered to be mandatory for the purposes of the rule under examination, it is likewise common ground that the national rules transposing Article 30 of the Framework Directive provided a broad range of measures that would have allowed the conformity of the vehicles concerned to the approved types 246, 176 and 117 to be restored (for example, recall and repair of vehicles or ordering a switch to the refrigerant R1234yf pursuant to an ancillary provision). In those circumstances the expression ‘necessary measures’ did not oblige the KBA to choose a specific measure from among those provided for, but to choose one of them. (
20
)
70.
The defendant’s arguments regarding the need to balance the requirement to attain the objective of restoring conformity, by converting the vehicles concerned to the refrigerant R1234yf, and the safety risks arising from the use of that refrigerant in vehicles of the types 246, 176 and 117 cannot, in my view, call such a conclusion into question. In other words, the failure to achieve the objective of restoring conformity also cannot be justified by the need, invoked by the Federal Republic of Germany, to carry out checks relating to those safety risks.
71.
I note, in this regard, that the defendant’s reasoning is based on the premiss that the considerations relating to the safety of the vehicles apply to ‘something else’ other than those involving the harmonised technical requirements to which the regulatory acts listed in Annex IV refer. This is clear in particular from the statement, contained in the rejoinder, that the Commission’s arguments put ‘unlimited formal compliance’ with those technical requirements before protecting the health and life of humans.
72.
That premiss is, in my view, incorrect and therefore fatally undermines the defendant’s arguments.
73.
It seems to me beyond doubt that ensuring safety coincides, in principle, with satisfaction of the technical requirements contained in the regulatory acts. This is absolutely clear from a reading of recital 3 of the Framework Directive, according to which the regulatory acts should primarily seek to ensure a high level of road safety and health protection. Far from being purely formal requirements, non-compliance with which can be justified by other safety concerns, those requirements define exhaustively the safety concerns which the EU legislature considers must or can be taken into account. (
21
)
74.
Although the regulatory acts have already determined the level of safety regarded as appropriate, the Member States certainly cannot invoke reasons based on safety to justify non-compliance with the provisions of those acts.
75.
Consequently, the KBA cannot invoke the need to verify the safety risks associated with the use of the refrigerant with a global warming potential less than 150 (R1234yf) to justify not having taken the necessary measures to remedy Daimler’s failure to comply with the technical requirement necessitating the use of this refrigerant contained in Article 5(4) of the Air Conditioning Systems Directive. It necessarily follows that the action of the Federal Republic of Germany in those circumstances constituted an infringement of Article 30 of the Framework Directive.
76.
Nor can that conclusion be altered, in my view, by the fact that in its rejoinder the Federal Republic of Germany contends that the use of the refrigerant R1234yf in the vehicles produced by Daimler was liable to create a risk situation incompatible with Directive 2001/95.
77.
I consider that Directive 2001/95 is not applicable in the present case. This is clear from the reference contained in recital 17 of the Framework Directive, according to which that directive lays down a set of specific ‘safety requirements’ within the meaning of Article 1(2) of Directive 2001/95. By providing that ‘where products are subject to specific safety requirements imposed by Community legislation, this Directive shall apply only to the aspects and risks or categories of risks not covered by those requirements’, (
22
) that article qualifies Directive 2001/95 as a lex generalis which can apply only where the lex specialis made up of the combined provisions of the Framework Directive and the regulatory acts do not apply. However, the latter acts contain a technical requirement (or to use the language of recital 17, a safety requirement) relating to the use of the refrigerant, that is to say Article 5(4) of the Framework Directive, and thus apply instead of Directive 2001/95. (
23
)
78.
Finally, there is a point which has to be clarified.
79.
Both in the written procedure and at the hearing the parties discussed what action should have been required of KBA to take account of safety concerns expressed by Daimler without infringing Article 30 of the Framework Directive.
80.
In this regard, I agree with the Commission that in that case the KBA could have availed itself only of the power conferred on Member States by Article 29 of the Framework Directive.
81.
That article, which is included in Chapter XII of the Framework Directive (‘Safeguard clauses’), allows the Member States to take account of the risks to road safety, public health and the environment as a result of shortcomings in the particular relevant directives or incorrect application of the technical requirements contained therein, but without allowing unilateral derogations from those technical requirements.
82.
In particular, it provides that Member States may, for a maximum period of six months, refuse to register such vehicles or to permit the sale or entry into service, where; (i) the vehicles concerned conform to the technical requirements laid down by the particular directives; (ii) there is a ‘serious’ risk to road safety, the environment or public health; and (iii) a special alert procedure, which involves both the other Member States and the Commission, is followed.
83.
In any event, even if the Federal Republic of Germany had invoked the application thereof (quod non), it seems clear that none of those conditions could be considered to have been satisfied in the present case.
84.
I therefore consider that the second part of the first plea alleging failure to fulfil obligations must also be upheld.
B.
Infringement of Article 46 of the Framework Directive
1. Arguments of the parties
85.
In the application, the Commission claims that Daimler has infringed Articles 5 and 18 of the Framework Directive. In this regard, it recalls, first of all, that Article 5 stipulates that the manufacturer is obliged to ensure that the requirements underlying the type-approval of relevant vehicles are complied with on a permanent basis. However, as from January 2013 the types 246, 176 and 117 were no longer manufactured in conformity with their type-approval. Furthermore, the Commission points out that the combined provisions of Article 18(1) of the Framework Directive and Annex IX thereto provide that the manufacturer is to grant a certificate of conformity for a finished vehicle only if the vehicle in question is ‘manufactured in conformity with the approved vehicle type’. It follows, in the view of the Commission, that a manufacturer cannot issue a certificate of conformity if the conformity of the vehicle to the approved type concerned, as attested by the certificate, does not exist. However, given that since January 2013 the vehicles of types 246, 176 and 117 no longer conformed to the approved type, Daimler’s declaration in the certificate of conformity issued for the vehicles of those types did not correspond to reality. In those circumstances, the Commission points out that Article 46 of the Framework Directive provides that each Member State is obliged to determine, in its national law, ‘effective, proportionate and dissuasive’ penalties applicable where the manufacturers fail to comply with the provisions of that directive. Since the KBA did not, in the view of the Commission, impose any penalty on Daimler, that failure constitutes an infringement of Article 46 of the Framework Directive.
86.
In its defence, the Federal Republic of Germany contests the claim that Article 46 of the Framework Directive has been infringed. In this regard, it makes it clear that penalties may be imposed only if the KBA makes an order at the end of this technical assessment and Daimler does not comply with that order.
87.
In its reply, the Commission merely emphasises, in this regard, that the obligation to impose penalties laid down in that article is applicable irrespective of the infringement of Articles 12 and 30 of the Framework Directive.
2. Assessment
88.
The second infringement attributed to the Federal Republic of Germany relates to the obligation to penalise any infringement of the Framework Directive and, in the circumstances of this case, of Articles 5 and 18. In short, these provisions impose on the manufacturer respectively the obligation to ensure that production of its vehicles complies permanently with the technical requirements, on compliance with which its type-approval was based, and the obligation to issue a certificate of conformity for every vehicle manufactured in conformity with the approved type.
89.
I would observe first of all that in neither the defence nor the rejoinder submitted by the Federal Republic of Germany in the course of the written procedure is there any trace of objections to Daimler’s failure to fulfil the obligations laid down in Articles 5 and 18 of the Framework Directive, which, moreover, appears to be entirely clear from the facts of the case. In the light of this, I will not expand further on this matter and will move straight on to examine whether it can be held that the action of the Federal Republic of Germany constitutes an infringement of Article 46 of the Framework Directive.
90.
In this regard, I note that the first part of that rule provides that Member States are obliged to determine, in their national law, the penalties applicable for failure to comply with the provisions of the Framework Directive and the regulatory acts. That obligation was, in my view, fulfilled by the defendant, since Paragraph 37 of the EG-FGV provides that the infringements set out in Article 46 of the Framework Directive must be penalised as infringements of national law.
91.
Nor can that be said with regard to the second part of the rule, which requires the Member States to take all the necessary measures to ensure the application of effective, proportionate and dissuasive penalties. It is apparent from the case file that that KBA imposed no penalty of the manufacturer Daimler in response to the infringement of Articles 5 and 18 of the Framework Directive. (
24
) That inaction certainly constitutes an infringement of Article 46 of the Framework Directive.
92.
The Federal Republic of Germany’s arguments in its defence do not convince me otherwise.
93.
According to those arguments, the penalties laid down in Article 46 of the Framework Directive would be imposed by the KBA only at the end of the technical assessment of the risks associated with the conversion to the refrigerant R1234yf of the non-conforming vehicles already produced and marketed if an order concerning the conversion of those vehicles had been made and not complied with. This is based on the incorrect premiss that failure to fulfil the obligations imposed on the manufacturer under Articles 5 and 18 of the Framework Directive cannot be punished independently, but only on the ground that measures to restore conformity which the competent authorities of the Member States took pursuant to Articles 12 and 30 of the Framework were not implemented.
94.
On the contrary, it seems to me beyond doubt that the obligation laid down in Article 46 of the Framework Directive to impose effective, proportionate and dissuasive penalties for failure to comply with the provisions of the Framework Directive must be applied independently (
25
) of the obligation, laid down in Articles 12 and 30 of the Framework Directive, to re-establish conformity to the approved type.
95.
As the Commission correctly observes in its reply, this is confirmed by the fact that Article 46 pursues, within the system established by the Framework Directive, different objectives from those of Articles 12 and 30. Whilst the function of those articles, which were laid down to safeguard compliance with technical requirements contained in the regulatory acts, is to attain the objectives which they pursue, that is to say principally to protect road safety, health and the environment, (
26
) Article 46 primarily serves the objective of establishing and operating an internal market characterised by fair competition between manufacturers (
27
) by ensuring that the system of type-approval is applied effectively.
96.
Although the present case shows that a cumulative application thereof is conceivable where failure to comply with a provision of the Framework Directive has the effect of creating a lack of conformity, it certainly cannot be said that infringement of Articles 12 and 30 is dependent on infringement of Article 46, in respect of which the obligation to impose penalties provided for by the latter arises only in the event of failure to comply with the requirements laid down by the former for the purpose of restoring conformity.
97.
Consequently, the KBA should have censured the failure to fulfil the obligations on Daimler under Articles 5 and 18 of the Framework Directive by imposing effective, proportionate and dissuasive penalties. It must be concluded that by disregarding that obligation to impose penalties, the Federal Republic of Germany infringed Article 46 of the Framework Directive.
98.
Therefore, the second plea alleging failure to fulfil obligations must, in my opinion, be upheld by the Court.
C.
Circumvention of the Air Conditioning Systems Directive by extension of approval of type 245G
1. Arguments of the parties
99.
In the application, the Commission recalls first of all, with reference to Article 14 of the Framework Directive, that an approved type can be extended to other vehicles which differ from that type where those vehicles satisfy the legal conditions to which the grant of the original type-approval was subject and can be regarded as being covered by that type on the basis of the criteria set out in Annex II, Part B, to the Framework Directive. In the view of the Commission, those conditions are not satisfied in the present case where the type 245G, approved at a time when the Air Conditioning Systems Directive was not yet applicable, was extended to vehicles which had been approved (and manufactured) as types 246, 176 and 117, at a time when the directive was already applicable. That is not in fact an extension in the sense meant by the directive, but a replacement of approval under the guise of an extension, and therefore entails a circumvention of EU law. The Commission claims that this conclusion is confirmed by the wording of certain specific provisions of the Framework Directive, and in particular Article 6(6) thereof, which stipulates that a type which has already been approved may not be subject to further approval, Annex II, Point 7, and Annexes VII and IX. Those rules preclude the possibility of replacing the type-approval. In this respect, the Commission stresses that the function of the extension is to allow adaptation of an existing type of vehicle to new requirements introduced for new vehicles on account of technical innovations, and not adaptation of the requirements in force in respect of a particular type of vehicle.
100.
In its defence, the Federal Republic of Germany contends that the KBA did not intend to circumvent that directive by accepting the extension of existing type 245G to vehicles which had already been granted type-approvals to which the requirements of the Air Conditioning Systems Directive apply, that is to say type-approvals 246, 176 and 117. Moreover, according to the Federal Republic of Germany production of those types was definitively discontinued on 26 June 2013. The vehicles covered by the application for extension of type 245G must therefore have been regarded as being covered by a different type from the vehicles approved as types 246, 176 and 117.
101.
In any event, the defendant emphasises that the Air Conditioning Systems Directive does not prohibit extension of an earlier type-approval. On the contrary, the obligation for all vehicles to comply with the requirements of that directive at the time of their first registration only entered into force on 1 January 2017. In addition, the Federal Republic of Germany points out that extension is explicitly permitted by Article 45(5) of the Framework Directive. Finally, it claims that Article 6(6) of the Framework Directive does not lay down an absolute prohibition on replacing type-approval.
102.
In its reply, the Commission states that the vehicles of types 246, 176 and 117 produced after 26 June 2013 are technically identical to those manufactured before that date. The fact that those vehicles have had a different type-approval since 26 June 2013 is therefore a matter of law, not of fact. On the basis of that premiss, the Commission submits that the defendant did not have the right to grant Daimler’s application for an extension of type 245G as that application related to vehicles which had been previously approved as types 246, 176 and 117. Therefore, the Commission considers that granting Daimler’s application infringed Article 6(6) of the Framework Directive.
2. Assessment
103.
In short, the third infringement attributed to the Federal Republic of Germany concerns the circumvention of the Air Conditioning Systems Directive which occurred, in the view of the Commission, as a result of granting Daimler’s requests for extension of type 245G, approved in 2008 and therefore not subject to the obligation to use a refrigerant compatible with that directive, to vehicles for which other type-approvals (246, 176 and 117) had been granted and which were, by virtue thereof, subject to the application of the Air Conditioning Systems Directive. The defendant counters the Commission’s argument, contending that the production of vehicles of types 246, 176 and 117 was voluntarily discontinued on 26 June 2013.
104.
I note first of all that in the form of order sought in the application the Commission did not indicate, as regards the plea in question, which specific provisions of the uniform system of type-approval are alleged to have been infringed. However, a reading of the arguments put forward by the Commission in its pleadings suggests that the legal basis for the failure to fulfil obligations is the incompatibility of granting Daimler’s application for extension with, (i) the ex-post control system put in place by the Framework Directive, and (ii) the objective pursued by it. I will therefore analyse in turn these two parts of the plea in question.
105.
In the first part, the Commission observes that the arrangements for the ex post control, which involve limited verification of the conformity of the vehicle to the approved type, necessarily require that the individual vehicles correspond precisely to their approved types and conform to the technical requirements in force at the time of their approval. For those reasons, the rules on type-approval stipulate, firstly, that a type already approved cannot be granted a new type-approval (Article 6(6) of the Framework Directive). (
28
) Secondly, they provide for the attribution to each approved type of an identification number indicating the legal situation in force at the time of the type-approval, which must not be confusing (Annexes II, Point 7, and VII to the Framework Directive) and also the granting for each vehicle marketed of a certificate of conformity which also contains information on that legal situation (Annex X to the Framework Directive). In the view of the Commission, it follows that the ex-post control system outlined in the Framework Directive, and in particular in Articles 12 and 30, contains an implicit ‘prohibition of replacement of the type-approval’, which was infringed by KBA granting Daimler’s applications.
106.
The Commission’s interpretation, which leads it to conclude that the extension of type 245G requested by Daimler is contrary to the fundamental rules of the ex-post control system, in particular with Article 6(6) of the Framework Directive, on the ground that the vehicles covered by it had previously been covered by other type-approvals, is unconvincing.
107.
Moreover, it is, in my view, inconsistent with the wording of Article 6(6).
108.
Although it is true that the relevant passage of that provision provides that only one application can be submitted by the manufacturer, it also makes it clear that that prohibition relates to each ‘particular type of vehicle’. Consequently, the conclusion reached by the Commission can be shared only if it is shown that the vehicles covered by the extension of the approved type 245G are completely identical, as regards the criteria set out in Annex II, Part B, to the Framework Directive, to those previously approved as types 246, 176 and 117. Only in that case could it be deduced, as the Commission does, that Daimler’s application for extension relates to a type of vehicle which had been granted a prior approval and therefore KBA granting that application is contrary to Article 6(6) of the Framework Directive.
109.
The issue just described above was the subject of intense debate between the parties at the hearing.
110.
In this regard, it should be recalled first of all that as it is a fundamental issue in reaching a conclusion on the merits of this plea alleging failure to fulfil obligations, the burden of proving that the vehicles with identification numbers 246, 176 and 117 are covered by the same type as those covered by the application for approval of the type 245G lies with the Commission, which must provide the Court with all the information needed to enable it to establish that the obligation has not been fulfilled. (
29
)
111.
I will now illustrate the reasons why I consider that the Commission did not discharge that burden.
112.
The Commission’s conclusion that vehicles covered by types 246, 176 and 117 are completely identical to those covered by the application for extension of the approval of the type 245G appears to be based on the absolute identity of the respective trade names and models. That evidence is not sufficient. It is true that ‘essential aspects of construction and design’ of a vehicle are one of the three essential elements of the concept of ‘type’ as regards the vehicle category M1, (
30
) as defined in Annex II, Part B, to the Framework Directive, together with the ‘manufacturer’ and ‘manufacturer’s type designation’. However, as the Federal Republic of Germany argues on the basis of numerous examples in the European context of vehicles which have identical or almost identical characteristics but are approved as different types, the European legislature sought, by the legislation in force at the material time, to confer on the ‘manufacturer’s type designation’ a conclusive value (
31
) for the purpose of determining the scope of a type. It follows that, even where vehicles approved as types 246, 176 and 117 are entirely identical to those covered by the extension of type 245G, the fact that Daimler used different (
32
) type designations for them must be regarded as sufficient, in the light of the legislation applicable at that time, to conclude they are different types of vehicle.
113.
There is no doubt that what that provision of necessity entails confers a certain discretion on the manufacturer. It is precisely for that reason that Commission Regulation (EU) No 678/2011 of 14 July 2011, which replaces Annex II and amends Annexes IV, IX and XI to the Framework Directive, removed ‘the manufacturer’s type designation’ from the list of essential characteristics of ‘type’. (
33
)
114.
It must therefore be held, as the Federal Republic of Germany does, that the legislation applicable to the present case does in fact confer on the manufacturer the power to decide the scope of the concept of ‘type’.
115.
In the light of the foregoing, I consider that the Commission has not sufficiently demonstrated that the vehicles approved as types 246, 176 and 117 are identical to those covered by the application for extension of type 245G and that, consequently, KBA’s granting of those applications is contrary to the ex post control system established by the Framework Directive, and in particular with the prohibition of replacement of the approval under Article 6(6).
116.
In the context of the second part of the present plea, the Commission claims that granting Daimler’s application for extension of the type-approval is incompatible with the objectives of the Framework Directive, and in particular with that of ensuring that new vehicles provide a high level of safety and environmental protection. The Commission considers that effective compliance with the requirements to safeguard that level of protection, that is to say those contained in the regulatory acts listed in Annex IV to the Framework Directive, would be compromised if the directive in question authorised extension to certain vehicles of a type subject to technical requirements which involve a lesser degree of safety and environment protection than those applicable to the type which covers those vehicles by virtue of a previous approval.
117.
In this regard, let me make clear at the outset that, in my view, the objectives of the Framework Directive relating to safety and environmental protection can preclude the grant of applications for extension of type 245G only where that conclusion is supported by evidence which can be derived from the provisions of that directive itself or of the related regulatory acts. Moreover, it is reasonable to assume that in laying down rules on matters characterised by a high level of technicality such as that at issue, the EU legislature regulates the fundamental aspects thereof through the use of specific and precise provisions.
118.
The question therefore arises as to whether the provisions on extending type-approval (in the Framework Directive) or implementation of the technical requirement concerning the use of a refrigerant with a global warming potential of less than 150 (in the Air Conditioning Systems Directive) must be interpreted as meaning that granting the application for extension of approval of type 245G to vehicles which were already covered by type-approval as types 246, 176 and 117 is compatible with the objectives of safety and protection of the environment sought by the Framework Directive. In other words, it is necessary to determine whether that directive can accept not only progress but also a temporary step backwards (
34
) in the pursuit of those objectives.
119.
I consider that the answer to this question must be in the affirmative.
120.
I would point out first of all that the extension of type-approval, which is defined in Article 14 of the Framework Directive, is to be found within the more general rules contained in Chapter V of that directive, which apply where the competent authorities of the Member States decide that the changes made to vehicles covered by an approved type after the grant of approval do not justify the use of a new approval. (
35
) Those changes involve an ‘extension’ where, in addition to the mere changes to the particulars recorded in the information package, new inspections or tests are required, one of the items of information in the type-approval certificate is changed, and new harmonised technical requirements applicable to the approved vehicles in question enter into force.
121.
It is clear from the wording of Article 14 that the extension of type-approval is a simplified procedure which the Framework Directive typically authorises where it is necessary to respond to the entry into force of new technical requirements applicable to the vehicles concerned. However, it does not follow from either Article 14 or any other provision of the uniform system that, as the Commission has repeated on several occasions, the extension applied for must be designed to bring about technical progress (
36
) towards the objectives of the Framework Directive concerning safety and protection of the environment.
122.
Therefore, the Commission cannot properly claim that the finding that granting an application for extension, such as those which Daimler submitted to the KBA, is incompatible with the Framework Directive must be based solely on the fact that the vehicles were previously covered by type-approvals such as those corresponding to types 246, 176 and 117, which guaranteed, through the application of the technical requirement relating to the use of a refrigerant with a low global warming potential, a higher degree of safety and environmental protection.
123.
In further support of this conclusion, I consider it necessary to recall that the Air Conditioning Systems Directive, adopts a gradual approach (
37
) in pursing the objective of environmental protection by limiting emissions of fluorinated greenhouse gases. In addition to prohibiting the Member States from issuing, as from 1 January 2011, new type-approvals for vehicles fitted with a refrigerant with a global warming potential greater than 150, it expressly provides that the registration of vehicles fitted with refrigerant incompatible with that provision can by refused by Member States only as from 1 January 2017. (
38
) The introduction of that transition period therefore means that until 1 January 2017 vehicles covered by a type approved before 1 January 2011 were entitled to use refrigerant incompatible with the Air Conditioning Systems Directive.
124.
If follows from the above considerations that, although it failed to apply previously for the type-approvals for the vehicles concerned corresponding to types 246, 176 and 117, Daimler could have, by virtue of that transitional period, obtained, by submitting subsequent applications, an extension of the approval of the type 245G, which has a refrigerant incompatible with the technical requirements in force, until 1 January 2017. If such action, which has clear adverse effects on the objectives of safety and protection of the environment, is permitted by the Air Conditioning Systems Directive, I consider it beyond doubt that the granting of the application for extension of approval of the type 245G in the present case, the harmful effect of which on those objectives would be comparable or even less, must not be regarded as contrary to them, as the Commission claims.
125.
The fact that the application for extension of approval granted by the KBA related to a type approved before the date of entry into force of the Framework Directive (29 April 2009), (
39
) is certainly not proof to the contrary since Article 45(5) thereof provides that its entry into force is not to invalidate any type-approval granted before 29 April 2009nor prevent the extension of such approvals. (
40
)
126.
I further note in this respect that it is precisely cases such as the present which led the Commission, as it explicitly acknowledged at the hearing, to provide, in the proposal for a regulation of the European Parliament and of the Council of 27 January 2016 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, (
41
) that type-approvals are to have a maximum duration of five years without the possibility of prolongation. (
42
) The provision would have made it possible to prevent abuses of the rules on type-approval which, in some cases, can be perpetrated by the manufacturer through repeated applications for extension of a particular type-approval or by applications for extension submitted with the aim of avoiding the application of new technical requirements involving a higher degree of safety or protection of the environment.
127.
In conclusion, I consider that KBA’s granting of the application for extension of the type 245G to vehicles which had been previously approved as types 246, 176 and 117 by the KBA is not such as to be contrary to the objectives of safety and environmental protection sought by the Framework Directive.
128.
It is therefore my opinion that the third plea alleging failure to fulfil obligations must be dismissed by the Court.
V. Conclusion
129.
In the light of the foregoing considerations, I therefore propose that the Court should declare that:
–
The Federal Republic of Germany has failed to fulfil its obligations under Articles 12 and 30 of 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 by failing to take the measures necessary to re-establish the conformity of vehicles of types 246, 176 and 117 to their approved types.
–
The Federal Republic of Germany has failed to fulfil its obligations under Article 46 of Directive 2007/46 by failing to take the measures necessary to implement penalties for the infringements of Articles 5 and 18 of the directive committed by Daimler.
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The remainder of the action is dismissed.
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The Federal Republic of Germany is ordered to pay two thirds of the costs of the European Commission and two thirds of its own costs. The Commission is to pay one third of the costs of the Federal Republic of Germany and one third of its own costs.
(
1
)	Original language: Italian.
(
2
)	OJ 2007 L 263, p. 1. Previously, only Article 4(3) of the Framework Directive has been a subject of interpretation by the Court as part of an assessment whether an action for failure to fulfil obligations was well founded. See judgments of 20 March 2014, Commission v Poland (C‑639/11, EU:C:2014:173), and of 20 March 2014, Commission v Lithuania (C‑61/12, EU:C:2014:172).
(
3
)	OJ 2006 L 161, p. 15.
(
4
)	Commission communication. ‘The supply shortage of an essential component in mobile air conditioning systems and its impact to the application of Directive 2006/40/EC in the automotive industry’ C(2012)2200 final.
(
5
)	According to the case file, the global warming potential of that refrigerant is close to 3000, compared with the limit of 150 laid down in the directive.
(
6
)	This estimate is based on the volume of sales of types 246, 176 and 117. The difference compared to the previous estimate of 133713 is due to the inclusion of vehicles produced and marketed after 26 June 2013.
(
7
)	Moreover, the Commission considers that the lack of conformity persists. The validity of the approval of types 246, 176 and 117 did not in fact cease on 26 June 2013, since the vehicles which Daimler produced after that date also corresponded to those types, even though the type 245G had been extended to those vehicles.
(
8
)	OJ, English Special Edition 1970(I), p. 96.
(
9
)	See the exhaustive list contained in Annex IV to the Framework Directive.
(
10
)	That control is laid down in Article 4 of the Framework Directive.
(
11
)	See footnote 1 to Annex X.
(
12
)	Emphasis added.
(
13
)	Emphasis added.
(
14
)	However, a genuine order for restoration of the conformity of the vehicles in question was not made until 23 March 2017, that is to say around three months after the Commission brought the action. Consequently, it is not relevant for the purposes of the present proceedings.
(
15
)	Emphasis added.
(
16
)	Emphasis added.
(
17
)	Emphasis added. See, as regards Article 4 of Council Directive 75/442/EC of 15 July 1975 on waste (‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment ...’), judgment of 26 April 2007, Commission v Italy (C‑135/05, EU:C:2007:250, paragraph 37).
(
18
)	Emphasis added.
(
19
)	Emphasis added.
(
20
)	Emphasis added.
(
21
)	As is clear from recital 2 of the Framework Directive, the harmonisation established by a combination of the Framework Directive and regulatory acts is exhaustive in nature (‘For the purposes of the establishment and operation of the internal market of the Community, it is appropriate to replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation’). See, to that effect, judgment of 20 March 2014, Commission v Poland (C‑639/11, EU:C:2014:173, paragraphs 34 and 35).
(
22
)	Emphasis added.
(
23
)	To give an example of the safety risk to which the provisions of Directive 2001/95 would apply, and in particular the concept of ‘safe product’ referred to in Article 2(1)(b), the Commission mentioned, at the hearing, the case of an accelerator that does not work. Since there are no technical requirements concerning the construction of an accelerator in the regulatory acts, Directive 2001/95 applies to that situation.
(
24
)	Emphasis added. For that reason, it is evident to me that it is not necessary to refer, as the Commission does in its application, to the criteria established by the case-law in assessing whether the penalties applied by the Member States for infringements of EU law are effective, proportionate and dissuasive in nature.
(
25
)	Emphasis added.
(
26
)	See the objectives listed in recital 3 of the Framework Directive.
(
27
)	See the objective mentioned in recital 2 of the Framework Directive.
(
28
)	In its reply, the Commission presented the content of that article in slightly different terms, stating that it requires the Member States to ensure that no type-approval is required for the vehicles covered by the extension. However, that circumstance is not such as to invalidate the reasoning which follows in this Opinion.
(
29
)	See, in particular, judgment of 27 January 2011, Commission v Luxembourg (C‑490/09, EU:C:2011:34, paragraph 49).
(
30
)	Category M1 is the one to which the vehicles covered by the applications for extension of type 245G belong. Under Annex II, Part A, to the Framework Directive, which defines the categories of vehicles, that category designates vehicles ‘designed and constructed for the carriage of passengers and comprising no more than eight seats in addition to the driver’s seat’.
(
31
)	Emphasis added.
(
32
)	Emphasis added.
(
33
)	It has to be made clear that the new version of Annex II does not apply to the present case where the type covered by the application for extension was approved in 2008 since Article 3(1) of Regulation No 678/2011 clearly states that the regulation is to apply only to vehicle types approved on or after 29 October 2012. To specify the foregoing, I should clarify that according to the version of Annex II applicable to the present case a ‘type’ is to consist of vehicles which do not differ in at least the following essential respects: the manufacturer, the manufacturer’s type designation, essential aspects of construction and design: chassis/floor pan (obvious and fundamental differences), power plant (internal combustion/electric/hybrid). The current version, as amended by Regulation No 678/2011, provides that a vehicle ‘type’ is to consist of vehicles which share the manufacturer’s company name and the design and assembly of the essential parts of the body structure (in the case of a self-supporting body).
(
34
)	Emphasis added.
(
35
)	See Article 13 of the Framework Directive.
(
36
)	Emphasis added.
(
37
)	Emphasis added.
(
38
)	See Article 5(5) of the [Air Conditioning Systems Directive].
(
39
)	That date is deduced from a combined reading of Article 45(1) of the Framework Directive and Annex XIX thereto.
(
40
)	Emphasis added.
(
41
)	COM(2016) 31 final.
(
42
)	See Article 33 of the proposal.