Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 21 November 2024 (1)
Joined Cases C‑251/23 and C‑308/23
OB (C‑251/23),
YV (C‑308/23)
v
Mercedes-Benz Group AG
(Requests for a preliminary ruling from the Landgericht Duisburg (Regional Court, Duisburg, Germany))
( Reference for a preliminary ruling – Approximation of laws – Type approval of motor vehicles – Directive 2007/46/EC – Article 18(1) – Article 26(1) – Article 46 – Regulation (EC) No 715/2007 – Article 3(10) – Article 4(1) and (2) – Article 5(1) and (2) – Diesel motor vehicles – Type approval test for pollutant emissions – Emissions of nitrogen oxides (NOx) in excess of the limit values laid down in that regulation – Increase in NOx emissions and simultaneous reduction in emissions of other harmful substances – Defeat device – Prohibition on the use of defeat devices that reduce the effectiveness of emission control systems – Exception to that prohibition – Protection of the interests of an individual purchaser of a vehicle fitted with an illegal defeat device – Right to compensation from the car manufacturer in tort – Burden of proof – Principle of effectiveness – Method of calculating compensation )
I.      Introduction
1.        The scope of the provisions of EU law relating to the emission of gaseous pollutants by diesel motor vehicles has already led the Court to rule, on several occasions, on the interpretation of Directive 2007/46/EC (2) and Regulation (EC) No 715/2007. (3) By its requests for a preliminary ruling in the present joined cases, the Landgericht Duisburg (Regional Court, Duisburg, Germany) is asking the Court to develop that case-law further, in particular as regards the question of the right to compensation conferred on the individual purchaser of a vehicle which does not comply with the limit values for nitrogen oxide (NOx) emissions laid down by that regulation, following the judgment in Case C‑100/21, (4) decided by the Grand Chamber.
2.        The requests for preliminary rulings were made in proceedings between OB (Case C‑251/23) and YV (Case C‑308/23) respectively, natural persons, and Mercedes-Benz Group AG concerning their right to compensation following the purchase of diesel motor vehicles allegedly fitted with devices unlawful under EU law.
II.    Legal context
A.      EU law
1.      Directive 2007/46
3.        Directive 2007/46 was repealed by Regulation (EU) 2018/858, (5) with effect from 1 September 2020, pursuant to Article 88 thereof. However, given the date of the facts at issue, that directive remains applicable to the disputes in the main proceedings.
4.        Article 1 of that directive, entitled ‘Subject matter’, stated:
‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.
…
Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV.’
5.        Article 3 of the same directive, entitled ‘Definitions’, provided, in points 5 and 36:
‘For the purposes of this Directive and of the regulatory acts listed in Annex IV, save as otherwise provided therein:
…
5.      “EC type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI;
…
36.      “certificate of conformity” means the document set out in Annex IX, issued by the manufacturer and certifying that a vehicle belonging to the series of the type approved in accordance with this Directive complied with all regulatory acts at the time of its production’.
6.        Article 18 of Directive 2007/46, entitled ‘Certificate of conformity’, provided, in paragraph 1 thereof:
‘The manufacturer, in his capacity as the holder of an EC type-approval of a vehicle, shall deliver a certificate of conformity to accompany each vehicle, whether complete, incomplete or completed, that is manufactured in conformity with the approved vehicle type.
…’
7.        Article 26 of that directive, entitled ‘Registration, sale and entry into service of vehicles’, read as follows, in paragraph 1 thereof:
‘Without prejudice to the provisions of Articles 29 and 30, Member States shall register, and permit the sale or entry into service of, vehicles only if they are accompanied by a valid certificate of conformity issued in accordance with Article 18.
…’
8.        Article 46 of that directive, entitled ‘Penalties’, stated:
‘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 shall be effective, proportionate and dissuasive. …’
2.      Regulation No 715/2007
9.        According to
recitals 1 and 6 of Regulation No 715/2007:
‘(1)      …
The technical requirements for the type approval of motor vehicles with regard to emissions should … be harmonised to avoid requirements that differ from one Member State to another, and to ensure a high level of environmental protection.
…
(6)      In particular, a considerable reduction in [NOx] emissions from diesel vehicles is necessary to improve air quality and comply with limit values for pollution. …’
10.      Article 1 of that regulation, entitled ‘Subject matter’, states, in paragraph 1 thereof:
‘This Regulation establishes common technical requirements for the type approval of motor vehicles (vehicles) and replacement parts, such as replacement pollution control devices, with regard to their emissions.’
11.      Article 3 of that regulation, entitled ‘Definitions’, provides, in points 6 and 10 thereof:
‘For the purposes of this Regulation and its implementing measures the following definitions shall apply:
…
6.      “tailpipe emissions” means the emission of gaseous and particulate pollutants;
…
10.      “defeat device” means any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use’.
12.      Article 4 of that regulation, entitled ‘Manufacturers’ obligations’, states, in paragraphs 1 and 2 thereof:
‘1.      Manufacturers shall demonstrate that all new vehicles sold, registered or put into service in the Community are type approved in accordance with this Regulation and its implementing measures. Manufacturers shall also demonstrate that all new replacement pollution control devices requiring type approval which are sold or put into service in the Community are type approved in accordance with this Regulation and its implementing measures.
These obligations include meeting the emission limits set out in Annex I and the implementing measures referred to in Article 5.
2.      Manufacturers shall ensure that type approval procedures for verifying conformity of production, durability of pollution control devices and in-service conformity are met.
In addition, the technical measures taken by the manufacturer must be such as to ensure that the tailpipe and evaporative emissions are effectively limited, pursuant to this Regulation, throughout the normal life of the vehicles under normal conditions of use. …
In-service conformity shall be checked, in particular, for tailpipe emissions as tested against emission limits set out in Annex I. …’
13.      Article 5 of Regulation No 715/2007, entitled ‘Requirements and tests’, is worded as follows, in paragraphs 1 and 2 thereof:
‘1.      The manufacturer shall equip vehicles so that the components likely to affect emissions are designed, constructed and assembled so as to enable the vehicle, in normal use, to comply with this Regulation and its implementing measures.
2.      The use of defeat devices that reduce the effectiveness of emission control systems shall be prohibited. The prohibition shall not 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;
…’
14.      Annex I to that regulation, entitled ‘Emission limits’, lays down, for Euro 5 generation vehicles (Table 1) and Euro 6 generation vehicles (Table 2), the limit values for emissions of gaseous pollutants, in particular with regard to vehicles belonging to category M.
Table 4 of that annex defines the emission limit for the carbon monoxide (CO) and hydrocarbon (HC) tailpipe emissions after a cold start test, with respect, inter alia, to M category vehicles.
3.      Regulation (EC) No 692/2008
15.      Regulation (EC) No 692/2008 (6) was repealed by Regulation (EU) 2017/1151, (7) with effect from 1 January 2022, pursuant to Article 19 of the latter regulation. However, given the date of the facts at issue, Regulation No 692/2008 remains applicable to the disputes in the main proceedings.
16.      Article 1 of that regulation, entitled ‘Subject matter’, stated:
‘This Regulation lays down measures for the implementation of Articles 4, 5 and 8 of Regulation (EC) No 715/2007.’
17.      Annex III to Regulation No 692/2008, entitled ‘Verifying average exhaust emissions at ambient conditions (Type 1 test)’, provided:
‘1.      Introduction
This Annex describes the procedure for the type 1 test verifying the average exhaust emissions at ambient conditions.
2.      General requirements
2.1.      The general requirements shall be those set out in paragraph 5.3.1 of UNECE Regulation No 83, [(8)] with the exceptions described in sections 2.2 to 2.5.
2.2.      The vehicles that are subject to the test set out in paragraph 5.3.1.1 shall be understood as being all vehicles covered by the scope of this Regulation.
2.3.      The pollutants specified in paragraph 5.3.1.2.4 shall be understood as being all those covered by Tables 1 and 2 of Annex 1 of Regulation (EC) No 715/2007.
…
2.5.      The emission limits referred to in paragraph 5.3.1.4 shall be understood as being a reference to the emission limits set out in Table 1 of Annex 1 to Regulation (EC) No 715/2007 for Euro 5 vehicles, and in Table 2 of Annex 1 of Regulation (EC) No 715/2007 for Euro 6 vehicles.
…’
B.      German law
18.      Paragraph 823 of the Bürgerliches Gesetzbuch (Civil Code) states:
‘1.      Any person who, with intent or through negligence, unlawfully injures the life, body, health, freedom, property or other right of another person shall be obliged to compensate that other person for the resulting damage.
2.      The same obligation shall be imposed on a person who infringes a law which is intended to protect another person. If, according to the content of that law, it may also be infringed without fault, the obligation to provide compensation shall arise only in the event of fault.’
III. The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedures before the Court
A.      Case C‑251/23
19.      By a contract of sale of 25 May 2016, OB acquired from a garage owner a used motor vehicle of the make Mercedes-Benz, model GLK 200 CDI, with a mileage of 39 000 km, for the price of EUR 23 700 (‘vehicle 1’). That vehicle, registered for the first time on 21 November 2012 under that contract, is equipped with an OM 651 diesel engine of the Euro 5 generation.
20.      OB brought an action against Mercedes-Benz Group before the Landgericht Duisburg (Regional Court, Duisburg), the referring court, seeking damages on the ground that that vehicle contains defeat devices prohibited within the meaning of Article 5(2) of Regulation No 715/2007.
21.      In that regard, OB argued in particular that the software integrated into the engine control computer (‘software 1’) of vehicle 1 operates the exhaust gas recirculation system in two modes, namely mode
0, which is activated when the vehicle is driven on a road, and mode
1, which operates during the approval test for pollutant emissions, called the ‘New European Driving Cycle’ (NEDC), conducted in a laboratory (‘the NEDC test’), applicable at the time of the facts in the main proceedings. (9) That software is used for all OM 651 engines and results in lower NOx emissions when mode 1 is activated. Furthermore, the software is programmed according to a ‘temperature window’, which reduces or deactivates the exhaust gas recirculation rate below an outside temperature of 9 degrees Celsius, with the result that NOx emissions increase considerably, which constitutes a defeat device prohibited under Regulation No 715/2007. OB also stated that the vehicle is equipped with a number of other unlawful defeat devices, including the ‘Bit 15’ mode, the effect of which is that the exhaust gas recirculation function is deactivated after 26 km of driving. Furthermore, software 1 is also programmed so that regeneration of the device used to purify exhaust gases by selective catalytic reduction (SCR) (‘the SCR catalyst’), which is necessary for purification, took place almost exclusively during the first 20 to 25 minutes of operation of vehicle 1, that is during the NEDC test. Moreover, on 2 May 2019, an update to software 1 was installed on that vehicle. However, that update did not lead to an improvement but to a deterioration in NOx emissions.
22.      OB added that his decision to purchase vehicle 1 had been based on the fact that it complied with the minimum requirements for entry into service and that, had he been aware of the act of deception committed by Mercedes-Benz Group, he would not have purchased that vehicle. Accordingly, he claims to have suffered damage and, consequently, he asked the referring court to order that company to pay him the sum of EUR 23 700, plus interest, in exchange, first, for the surrender and transfer of ownership of vehicle 1 and, secondly, compensation for use amounting to EUR 953.35 and the subrogation of the applicant in the payment of
the sum of EUR 1 242.84 in respect of lawyers’ fees.
23.      Mercedes-Benz Group replied that that action should be dismissed on the ground, inter alia, that it had not caused any intentional damage to OB and had not deceived him. According to Mercedes-Benz Group, vehicle 1 was the subject of effective EC type-approval and could be used without restriction. OB did not suffer any damage, especially since an update of the software 1 was developed and approved for that vehicle. The contract of sale is not economically disadvantageous to OB since that vehicle did not lose its value because of the defects alleged and its lifetime was also not reduced as a result of those defects. That vehicle complies with the NOx emission limit values in the tests provided for by law, which is the most important element. The technical arguments put forward by Mercedes-Benz Group as to the functioning of vehicle 1 are then set out in considerable detail in the order for reference.
24.      In those circumstances, the Landgericht Duisburg (Regional Court, Duisburg) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: (10)
‘(1)      Is a diesel-powered passenger vehicle to which the Euro 5 emissions standard applies contrary to the rules of [EU] law, irrespective of whether a switching device that is to be classified conceptually as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 is installed in its control system, if it is clear from the outset, on the basis of its design and the control system for the installed functions, that after the engine has warmed up it emits more than 180 mg of nitrogen oxide per km in the “mix” even if it completes a NEDC test run in that state?
(2)      Can an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the results of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation No 715/2007 and therefore constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 even where the modulation of the parameters of the combustion process effected by the element of design based on the results of the sensing operation increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide and/or carbon dioxide?
(3)      If Question 2 is to be answered in the affirmative: under what conditions does the element of design in such a case constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?
(4)      If Question 2 is to be answered in the affirmative: are rules of national law which require the purchaser of a vehicle to the full extent to prove the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to the provisions of Article 18(1), Article 26(1) and Article 46 of Directive 2007/46, which are mentioned in the judgment [in Case C‑100/21], in so far as it follows from those provisions that the purchaser of a vehicle must, in the event that a prohibited defeat device is installed in it, have a right to compensation against its manufacturer (see paragraphs 91 and 93 of that judgment)?
(5)      If Question 4 is to be answered in the affirmative: what allocation of the burden of proof is provided for under [EU] law in a dispute between the purchaser of a vehicle and its manufacturer regarding the former’s right to compensation against the latter in respect of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007? Do the parties each benefit from a lighter burden of proof or are they subject to obligations where applicable and, if so, which? If obligations do apply, what are the consequences of non-compliance?
(6)      Are the provisions of Directive [2007/46], in particular Articles 18(1) and 3(36) of that directive, also intended to protect the individual purchaser of a vehicle specifically against making the acquisition of a vehicle which does not comply with the requirements of [EU] law, which he or she would not have made in the knowledge that the vehicle does not meet the requirements of [EU] law, because it was not intentional on his or her part?
(7)      Irrespective of the answer to the above question, under [EU] law, in the event of an infringement by the vehicle manufacturer of the provisions of Directive [2007/46] or of the provisions of national law adopted on the basis of that directive, in particular a case of infringement by the vehicle manufacturer of the prohibition on issuing an incorrect certificate of conformity, must the manufacturer always or, in any event, in certain cases, be obliged to exempt the purchaser in full from the consequences of the acquisition of a vehicle which does not meet the requirements of [EU] law, based on that infringement, therefore, should he or she so requests, to reimburse the cost of acquiring the vehicle, if applicable, concurrently in return for delivery and transfer of the vehicle and offsetting the value of any other benefits obtained by the purchaser as a result of the acquisition of the vehicle? If that applies only in certain instances: in which instances is this the case?
(8)      If question 7 is to be answered in the negative or only in the affirmative in certain cases: is the limitation of the claim for compensation of the purchaser of a vehicle which does not meet the requirements of [EU] law as regards its exhaust emissions and/or the characteristics of its emission control system in line with the amount by which the vehicle purchaser has overpaid, taking into account the risks associated with the unlawful defeat device, still consistent with the requirements of [EU] law if the manufacturer has merely negligently issued an incorrect certificate of conformity for the vehicle from which its compliance with all the regulatory acts at the time of its manufacture is evident? If this is not always the case: in which instances is this not the case?
(9)      If question 8 is to be answered in the affirmative: is the limitation of the claim for compensation of the purchaser of a vehicle which does not meet the requirements of [EU] law as regards its exhaust emissions and/or the characteristics of its emission control system in line with the amount by which the vehicle purchaser has overpaid, taking into account the risks associated with the unlawful defeat device, but no more than 15% of the purchase price, still consistent with the requirements of [EU] law if the manufacturer has merely negligently issued an incorrect certificate of conformity for the vehicle from which its compliance with all the regulatory acts at the time of its manufacture is evident? If this is not always the case: in which instances is this not the case?’
B.      Case C‑308/23
25.      By an order dated 14 September 2016, YV acquired from a motor dealer a Mercedes-Benz vehicle, model E 220 BlueTec, equipped with a diesel engine of type OM 651, of Euro 6 generation, which has an SCR catalyst (‘vehicle 2’).
26.      YV brought an action against Mercedes-Benz Group before the Landgericht Duisburg (Regional Court, Duisburg), the referring court, seeking damages on the ground that Mercedes-Benz Group had intentionally wrongfully damaged and defrauded him. In addition, he argues that he has a claim against that company, inter alia in that, contrary to what is stated on the certificate of conformity, vehicle 2 does not meet the requirements of EU law.
27.      In that regard, YV submitted, inter alia, that that vehicle is fitted with software integrated into the engine control computer, which takes account of the outside temperature. That vehicle thus uses a temperature window according to which, when the outside temperature is higher or lower than that in the NEDC test, namely 20 to 30
degrees Celsius, NOx emissions are changed. Thus, in normal use, the same vehicle has NOx emissions significantly higher than those indicated by Mercedes-Benz Group for that vehicle produced in series. Furthermore, a system referred to as ‘regulating the set temperature of the coolant’ is active in respect of vehicle 2. That system ensures that, in the event of detection of the NEDC test, the engine is kept artificially cooler than under normal operating conditions, which would have the effect of keeping the coolant circuit at a lower temperature and delaying the reheating of the engine oil. According to YV, that system makes it possible to comply with the NOx emission limit values in the NEDC test while, in normal on-road operation, the same system is not active, so that those emission limit values are exceeded.
28.      Again according to YV, based on an expert report submitted to the referring court in the context of another case, the radiator flap of a vehicle also equipped with an OM 651 engine opens, in normal operation, only when the temperature of the coolant exceeds 105 degrees Celsius whereas, during the NEDC test, it already opens when the temperature of the coolant exceeds 69 degrees Celsius, which results in additional cooling of the engine. Thus, during that test, the wind blowing into a moving car is simulated by a fan and the engine is cooled, in addition, by the opening of the radiator flap. It should be considered that vehicle 2 has the same defeat device. Furthermore, the SCR catalyst operates in such a way that a larger quantity of ‘AdBlue’ (11) is added to exhaust gases (which transforms NOx into a harmless substance) during the NEDC test than on an actual journey. Vehicle 2 is also equipped with several other defeat devices, including the ‘Bit 15’ mode, which reduces pollutant gas emissions during that test. Mercedes-Benz Group thus sought, with those defeat devices, not to protect the engines of its vehicles against damage but to comply with the emission limit values laid down for the NEDC test.
29.      YV emphasised that the purchase of vehicle 2 was detrimental to him in that he acquired a vehicle which was not suitable for authorisation. Had he been aware of this, he would not have purchased that vehicle. YV therefore requested the referring court to order Mercedes-Benz Group to pay him the sum of EUR 21 841.66, together with interest, and the sum of EUR 1 006.63, together with interest, in direct exchange for the transfer of ownership and the surrender of vehicle 2. He also asked that court to declare that Mercedes-Benz Group had failed to allow the trade-in of that vehicle and, in addition, to order Mercedes-Benz Group to pay him the sum of EUR 673.90, together with interest.
30.      Mercedes-Benz Group replied that that action should be dismissed, arguing, inter alia, that vehicle 2 had been the subject of a valid EC type-approval, which was not likely to lapse, and that there was no risk of loss of authorisation or withdrawal of type-approval for that vehicle. EC type-approval has a constitutive effect which is binding on the national court seised, and the existence of such type-approval is irreconcilable with the existence of an unlawful defeat device. All the functions of vehicle 2 criticised by YV operate as part of a normal journey on the road, under exactly the same conditions as during the NEDC test, and do not contribute by mere chance and on an ad hoc basis to the improvement of pollutant gas emissions. The technical arguments put forward by Mercedes-Benz Group as to the functioning of vehicle 2 are then set out in considerable detail in the order for reference.
31.      In those circumstances, the Landgericht Duisburg (Regional Court, Duisburg) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: (12)
‘(1)      [Question identical to the second question in Case C‑251/23].
(2)      [Question identical to the third question in Case C‑251/23].
(3)      Can a circuit or controller in a vehicle, which, by modulating the parameters of the combustion process, increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide and/or carbon dioxide, be prohibited under [EU] law from other points of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?
(4)      If Question 3 is to be answered in the affirmative: under what conditions is this the case?
(5)      If Question 1 is to be answered in the affirmative: under point (a) of the second sentence of Article 5(2) of Regulation No 715/2007 is a defeat device within the meaning of Article 3(10) of that regulation permitted even if, although it is not needed to protect the engine against damage or accident, it is nevertheless needed for the safe operation of the vehicle?
(6)      If Question 1 is to be answered in the affirmative: are provisions of national law which place the full burden on the purchaser of a vehicle to prove the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and, moreover, also the absence of facts on the basis of which any defeat device in the above sense that may be established is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of [that regulation], even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive [2007/46] cited in the judgment [in Case C‑100/21], in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited defeat device is installed therein (see paragraphs 91 and 93 of that judgment)?
(7)      If Question 6 is to be answered in the affirmative: what is the allocation of the burden of proof under [EU] law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and the existence of facts on the basis of which the latter is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of [that regulation]? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If obligations apply: what are the consequences of failing to meet them?
(8)      If Question 3 is to be answered in the affirmative: are provisions of national law which place the full burden on the purchaser of a vehicle to prove the presence of a circuit or controller which, although it cannot be qualified as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, is prohibited for other reasons, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive [2007/46] cited in the judgment [in Case C‑100/21], in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited circuit or controller is installed therein (see paragraphs 91 and 93 of that judgment)?
(9)      If Question 8 is to be answered in the affirmative: what is the allocation of the burden of proof under [EU] law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a prohibited circuit or controller of the type specified in Question 8? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones?
If obligations apply: what are the consequences of failing to meet them?
(10)      [Question identical to the sixth question in Case C‑251/23].
(11)      [Question identical to the seventh question in Case C‑251/23].
(12)      [Question identical to the eighth question in Case C‑251/23].
(13)      [Question identical to the ninth question in Case C‑251/23].’
32.      By decision of the President of the Court of 21 June 2023, Cases C‑251/23 and C‑308/23 were joined for the purposes of the written and oral parts of the proceedings and of the judgment.
33.      Written observations were submitted to the Court by Mercedes-Benz Group, the German Government and the European Commission. The same parties and interested parties made oral submissions at the hearing held on 10 July 2024.
IV.    Analysis
A.      The first question in Case C‑251/23
34.      By its first question in Case C‑251/23, the referring court asks, in essence, whether Article 4(2) and Article 5(1) of Regulation No 715/2007 must be interpreted as meaning that a vehicle equipped with a Euro 5 generation diesel engine does not comply with the emission limit values set out in Annex I to that regulation, irrespective of the existence of a defeat device, in a situation where, when the engine of that vehicle is warm, it emits more than 180 mg/km of NOx when, in that state, it carries out the NEDC test.
35.      In order to answer that question, it seems useful to me to recall how EU law, read in conjunction with international law, set the NOx emission limit values for a diesel motor vehicle such as vehicle 1 at the time of the facts in the main proceedings.
36.      In the first place, Directive 2007/46 established the framework for the type-approval of motor vehicles. As stated in recital 3 of that directive, ‘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’. Article 3(5) of that directive defined ‘EC type-approval’ as ‘the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI’ to the same directive. That Annex IV, entitled ‘List of requirements for the purpose of EC type-approval of vehicles’, referred, in Part I, entitled ‘Regulatory acts for EC type-approval of vehicles produced in unlimited series’, to Regulation No 715/2007 with regard to the technical requirements relating to
‘emissions (Euro 5 and 6) light duty vehicles/access to information’ for vehicles belonging to category M1, namely ‘vehicles used for the carriage of passengers and comprising no more than eight seats in addition to the driver’s seat’. (13)
37.      In the second place, with regard to Regulation No 715/2007, the first sentence of the first subparagraph of Article 4(1) thereof states that manufacturers are to demonstrate that all new vehicles sold, registered or put into service in the European Union are type approved in accordance with that regulation and its implementing measures. The second subparagraph of that Article 4(1) states that that obligation includes meeting the emission limits set out in Annex I to that regulation and the implementing measures referred to in Article 5 of that regulation. Furthermore, under the second subparagraph of Article 4(2) of Regulation No 715/2007, the technical measures taken by the manufacturer must be such as to ensure, in particular, that the tailpipe emissions
are effectively limited throughout the normal life of the vehicles under normal conditions of use. In addition, Article 5(1) of that regulation provides that the manufacturer must equip vehicles so that the components likely to affect emissions are designed, constructed and assembled so as to enable the vehicle, in normal use, to comply with that regulation and its implementing measures.
38.      In the third place, the purpose of Regulation No 692/2008, which, under Article 1 thereof, laid down measures for the implementation of Articles 4, 5 and 8 of Regulation No 715/2007, was, inter alia, to establish procedures for testing the pollutant emissions of light passenger and commercial vehicles, using the NEDC test. Annex III to Regulation No 692/2008 stated, in point 1 thereof, that it described the procedure for the type 1 test verifying the average exhaust emissions at ambient conditions. Point 2.1 of that annex provided that the general requirements were to be those set out in paragraph 5.3.1 of UNECE Regulation No 83.
39.      In the fourth place, UNECE Regulation No 83, in the version applicable at the time of the facts in the main proceedings, stated, in paragraph 5.3.1, entitled ‘Type I test (Verifying
[the average] exhaust emissions after a cold start)’, that the vehicle was placed on a chassis dynamometer equipped with a means of load and inertia simulation and then that a test lasting a total of 19 minutes and 40 seconds was carried out, comprising two parts. The first part of the test consisted of four elementary urban cycles and the second part consisted of one extra-urban cycle. In particular, that NEDC test made it possible to check that the quantity of NOx emitted by the vehicle tested was below the maximum threshold laid down in Annex I to Regulation No 715/2007. In that regard, it is apparent from that annex that, with regard to the ‘Euro 5 emission limits’, which are set out in Table 1, the NOx emission limit values for category M (including category M1) in the case of a compression-ignition engine (also referred to as a diesel engine) is 180 mg/km, applicable to a vehicle such as vehicle 1.
40.      In the present case, the referring court states that, at that stage of the investigation of the case, it was found that, when the engine of vehicle 1 is started when it is already at operating temperature, it emits more than 180 mg/km of NOx, even when carrying out the NEDC test. (14) That court wishes to know whether, for this reason alone, irrespective of the existence of a defeat device, that vehicle does not comply with the provisions of Regulation No 715/2007.
41.      In that regard, that court entertains doubts as to the conformity of that vehicle with EU law, in particular with Article 5(1) of that regulation, emphasising, first, that, in the judgment of 14 July 2022, GSMB Invest (C‑128/20, EU:C:2022:570, paragraph 41), the Court noted that Article 5(1) of that regulation provides that the manufacturer is to equip vehicles so that the components likely to affect emissions enable the vehicle, in normal use, to comply with the emission limits laid down by that regulation and its implementing measures. A journey after a ‘hot start’ of the engine is one of the usual uses of a diesel passenger vehicle within the territory of the European Union and it follows that the emission limit value of 180
mg/km for NOx applies to a vehicle such as vehicle 1.
42.      However, on the other hand, according to the referring court, the requirements relating to emission limit values could be understood as meaning that they must be complied with only under the conditions in which the NEDC test is to be carried out. Thus, it has never been argued that a vehicle must comply with the prescribed emission limit values when it is driven at its maximum power, for example when it is travelling at 180
km/h up a hill, which corresponds to normal use in the territory of the European Union for vehicles with such a powerful engine. In this respect, while one of the conditions of the NEDC test is that it be carried out after a cold start, a hot start involves a higher combustion temperature, which leads to an increase in NOx emissions. The question is therefore whether the NOx emission limit value corresponding to the Euro 5 standard must be complied with even where a vehicle carries out the NEDC test not after a cold start but after a hot start. (15)
43.      In its written observations, Mercedes-Benz Group argues that the NOx emission limit values are valid only in relation to the type 1 test carried out in accordance with the NEDC test. The German Government submits that, if those limit values were complied with under the conditions of that test, namely after a cold start, an infringement of EU law could occur only if the vehicle concerned is equipped with a prohibited defeat
device within the meaning of Article 3(10) of Regulation No 715/2007, and that it is only in order to answer the question whether such a device is present that it is relevant to determine whether the starting of an engine which is already hot is one of the conditions ‘which may reasonably be expected to be encountered in normal vehicle operation and use’.
44.      As is pointed out in point 37 of this Opinion, Article 5(1) of Regulation No 715/2007 refers to ‘normal conditions of use’ of vehicles in the context of the type-approval of motor vehicles with regard to pollutant gas emissions. The reference to the notion of ‘normal … operation and use’ of a vehicle is also mentioned in the definition of ‘defeat device’ in Article 3(10) of that regulation.
45.      According to the case-law of the Court, that regulation does not define the concept of ‘normal vehicle operation and use’ and makes no reference to the law of the Member States for the purpose of determining the meaning and scope of that concept. Accordingly, that concept is a concept of EU law that must be given an autonomous and uniform interpretation throughout the European Union, which must take into account not only the wording of the provisions in which it appears but also the context of those provisions and the objective pursued by them. As is apparent from the very wording of Article 3(10) of Regulation No 715/2007, the concept of ‘normal … operation and use’ of a vehicle refers to the use of the vehicle under normal driving conditions, that is to say not only to its use under the conditions laid down for the approval test, as referred to in point 39 of this Opinion, applicable at the material time. That concept thus refers to the use of that vehicle under real driving conditions, such as are usually present in the territory of the European Union. In the Court’s view, the test cycles for vehicle emissions under the approval procedure are not based on real driving conditions. (16)
46.      The Court added that that interpretation is supported by the context of Article 3(10) of Regulation No 715/2007. Under Article 4(2) of that regulation, the technical measures taken by the manufacturer must be such as to ensure, in particular, that the tailpipe emissions
are effectively limited throughout the normal life of the vehicles under normal conditions of use.
Furthermore, Article 5(1) of that regulation provides that the manufacturer must equip vehicles in such a way that the components which affect emissions enable the vehicles, in normal use, to comply with the emission limits laid down in the same regulation and its implementing measures. Those provisions do not reveal any element enabling a distinction to be drawn between the operation of a device during the type-approval test phase and during driving under normal conditions of use of the vehicles. On the contrary, the use of a device that would make it possible to ensure compliance with the emission limits laid down by Regulation No 715/2007 only during the approval test phase, even though that test phase does not make it possible to reproduce the normal conditions of use of the vehicle, would run counter to the obligation to ensure that emissions are effectively limited under such conditions of use. The same applies to the use of a device that would make it possible to ensure such compliance only within a temperature window which, although covering the conditions in which the approval test phase takes place, does not correspond to normal driving conditions, as defined in point 45 of this Opinion. The interpretation set out in the same point of this Opinion, according to which the concept of ‘normal … operation and use’ of a vehicle refers to its use under real driving conditions, such as are usually present in the territory of the European Union, is also borne out by the objective pursued by Regulation No 715/2007, which, as is apparent from recitals 1 and 6 thereof, is to ensure a high level of environmental protection and, more specifically, to considerably reduce the NOx emissions from diesel motor vehicles in order to improve air quality and comply with limit values for pollution. (17)
47.      It thus follows from that case-law that compliance with the NOx emission limit values must be verified not only in the context of the NEDC test but also under real driving conditions, in normal use. In that regard, as mentioned in point 39 of this Opinion, the type I test provides for a verification of average exhaust emissions after a ‘cold start’. In its question, the referring court refers to a ‘hot start’, which leads to an increase in NOx emissions. However, driving a vehicle with a hot engine constitutes use under real driving conditions, in normal use. A diesel engine, that is a combustion and explosion engine, necessarily heats up when it is running. (18) Consequently, a Euro 5 diesel motor vehicle that emits more than 180 mg/km of NOx after a warm start does not comply with the emission limit value set out in Annex I to Regulation No 715/2007.
48.      In addition, the referring court refers to the case of a vehicle being driven at maximum power, for example when travelling at 180 km/h up a hill, which, it submits, corresponds to normal use in the territory of the European Union for vehicles with powerful engines. In that regard, I note that, having regard in particular to the speed limits laid down in the European Union, such driving does not constitute normal use of a vehicle. In other words, car manufacturers are not required to comply fully with the limits on emissions of polluting gases in all possible circumstances, but only to ensure that those limits are not exceeded in the normal operation and use of a diesel motor vehicle.
49.      In those circumstances, I propose that the answer to the first question in Case C‑251/23 should be that Article 4(2) and Article 5(1) of Regulation No 715/2007 must be interpreted as meaning that a vehicle equipped with a Euro 5 generation diesel engine does not comply with the emission limit values set out in Annex I to that regulation, irrespective of the existence of a defeat device, in a situation where, when the engine of that vehicle is warm, it emits more than 180 mg/km of NOx when, in that state, it carries out the NEDC test, in so far as driving with a warm engine constitutes normal use, within the meaning of those provisions, of that vehicle, namely in real driving conditions, as they are usually present in the territory of the European Union. (19)
B.      The third and fourth questions in Case C‑308/23
50.      By its third and fourth questions in Case C‑308/23, the referring court asks, in essence, whether Article 4(2) and Article 5(1) of Regulation No 715/2007 must be interpreted as meaning that a vehicle equipped with a Euro 5 or Euro 6 generation diesel engine complies with the emission limit values laid down in Annex I to that regulation, irrespective of the existence of a defeat device, in a situation where an element of design present in that vehicle alters the combustion parameters by increasing emissions of one harmful substance while simultaneously reducing emissions of other harmful substances.
51.      In the present case, the referring court is referring to the element of design constituted by the radiator flap of a vehicle equipped with a type OM 651 engine which, according to YV, opens, in normal operation, only when the temperature of the coolant exceeds 105 degrees Celsius, whereas, during the NEDC test, it already opens when the temperature of the coolant exceeds 69 degrees Celsius, which results in additional cooling of the engine. The referring court points out that, according to the arguments of Mercedes-Benz Group, confirmed by the expert explanations brought to its attention in the context of other cases, lowering the combustion temperature reduces, all other things being equal, NOx emissions, but simultaneously increases emissions of other harmful substances, such as particulates, hydrocarbons, carbon monoxide and carbon dioxide emissions, whereas, conversely, increasing the combustion temperature increases NOx emissions but reduces emissions of other harmful substances.
52.      In this regard, I would point out that the second subparagraph of Article 4(2) of Regulation No 715/2007 provides that the technical measures taken by the manufacturer must be such as to ensure that the tailpipe emissions, inter alia, are effectively limited, throughout the normal life of the vehicles under normal conditions of use. Article 3(6) of that regulation defines the concept of ‘tailpipe emissions’ as ‘the emission of gaseous and particulate pollutants’. According to the case-law of the Court, those provisions therefore fix only the objective to be achieved by manufacturers, namely to limit tailpipe emissions, without specifying the means of achieving that objective. (20)
53.      As set out in the third subparagraph of Article 4(2) of that regulation, in-service conformity is to be checked, in particular, for tailpipe emissions as tested against emission limits set out in Annex I to the same regulation. In that regard, Tables 1 and 2 of that annex, relating respectively to ‘Euro 5 emission limits’ and ‘Euro 6 emission limits’, refer, for vehicles belonging to category M, to the following seven components: mass of carbon monoxide (CO); mass of total hydrocarbons (THC); mass of non-methane hydrocarbons (NMHC); mass of oxides of nitrogen (NOx); combined mass of hydrocarbons and oxides of nitrogen (THC + NOx); mass of particulate matter (PM) and number of particles (PN), setting emission limit values for each of these.
Table 4 of that annex
sets
the emission limit for the carbon monoxide (CO) and hydrocarbon (HC) emissions.
54.      It follows from those tables that, in the context of its type-approval, a vehicle with a Euro 5 or Euro 6 generation diesel engine must comply, simultaneously, with all the emission limit values relating to those components in the NEDC test. As is clear from the answer which I propose to give to the first question in Case C‑251/23, those limit values must also be complied with in the context of normal operation and use, that is to say, in real driving conditions, as they are usually present in the territory of the European Union. Accordingly, it must be held that, where an element of design present in such a vehicle alters the combustion parameters by increasing emissions of a harmful substance while at the same time reducing emissions of other harmful substances, but where, simultaneously, those limit values are not exceeded, the conditions laid down in Annex I to Regulation No 715/2007 are satisfied.
As can be seen from point 52 of this Opinion, the means employed to limit the tailpipe emissions are left to the discretion of the manufacturer.
55.      By contrast, if that element of design leads to the emission limit values for at least one of those harmful substances being exceeded, Regulation No 715/2007 must be found to have been infringed, even if, at the same time, emissions of other harmful substances are reduced. With regard to Tables 1, 2 and 4 of Annex I to that regulation, apart from the case expressly provided for the substance ‘combined mass of total hydrocarbons and oxides of nitrogen (THC + NOx)’, an increase in emissions of a harmful substance above its limit value cannot in any circumstances be offset by a reduction in emissions of another harmful substance. In other words, unlike the German Government, I take the view that an increase in emissions of a single pollutant above its limit value, however slight, must be regarded as contrary to that regulation even if, simultaneously, emissions of other pollutants are reduced to a significant extent. The opposite approach would, moreover, be very difficult to implement in that it would be necessary to determine, on a case-by-case basis, whether there is indeed an overall reduction in pollutant emissions and, also, to what extent one pollutant is more harmful than another.
56.      I therefore propose to answer the third and fourth questions in Case C‑308/23 that Articles 4(2) and 5(1) of Regulation No 715/2007 must be interpreted as meaning that a vehicle equipped with a Euro 5 or Euro 6 generation diesel engine does not comply with the emission limit values laid down in Annex I to that regulation, irrespective of the existence of a defeat device, where, in a situation where an element of design present in that vehicle modifies the combustion parameters by increasing the emissions of a harmful substance while simultaneously reducing the emissions of other harmful substances, that increase causes the limit value applicable to the harmful substance in question, as set out in that annex, to be exceeded.
C.      The second and third questions in Case C‑251/23 and the first and second questions in Case C‑308/23
57.      By its second and third questions in Case C‑251/23 and its first and second questions in Case C‑308/23, the referring court asks, in essence, whether Article 3(10) of Regulation No 715/2007 must be interpreted as meaning an element of design present in a diesel motor vehicle which alters the combustion parameters by increasing emissions of a harmful substance while simultaneously reducing emissions of other harmful substances constitutes a ‘defeat device’, within the meaning of that provision.
58.      That court states that it does not know whether and, if so, under what conditions, defeat devices or other switches or controls which are unlawful under EU law are present on vehicles 1 and 2, and it specifies that the answer to those questions is essential in order to give a final ruling on the disputes in the main proceedings. The referring court notes that, in the judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines) (C‑693/18, EU:C:2020:1040), the Court found the existence of a defeat device, within the meaning of Article 3(10) of Regulation No 715/2007, after noting that, if the operation of the exhaust gas recirculation valve (EGR valve) in normal conditions of use had been identical to its operation during the approval procedures, the vehicles concerned would have produced much less NOx and their fuel consumption and engine power would have been reduced (see paragraph 40 of that judgment). The referring court concludes from this that, in such a situation, NOx and carbon dioxide emissions would have been reduced at the same time, which is not the case in the main proceedings, and it
thus seeks an answer from the Court. More specifically, the referring court raises the question of the meaning to be given to the words ‘element of design that reduces the effectiveness of the emission control system’
as regards the
exhaust gas recirculation control system operating according to a temperature window and the engine coolant thermostat control system.
59.      Mercedes-Benz Group submits that it is appropriate to examine the overall effectiveness of the system for controlling emissions of gaseous pollutants and not to assess separately any reduction in effectiveness for each pollutant emission considered in isolation.
It argues that the quantities of some pollutant emissions are so interdependent that, in principle, the reduction of one of them necessarily entails, from a scientific
perspective, an increase of other by ‘compensation’.
60.      In that regard, I note that, under Article 3(10) of Regulation No 715/2007, a ‘defeat device’ is defined as ‘any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use’. The Court has held that that definition of a defeat device confers a broad scope on the concept of ‘element of design’, (21) which covers both mechanical parts and the electronic components which control the activation of those parts, where they act on the operation of the emission control system and reduce its effectiveness. The Court also considered that the concept of an ‘emission control system’, within the meaning of Article 3(10) of Regulation No 715/2007, covers both ‘exhaust gas after
treatment’ technologies and strategies that reduce emissions downstream, namely after their formation, and those which reduce emissions upstream, namely during their formation. (22)
61.      As indicated in response to the third and fourth questions in Case C‑308/23, a diesel-powered vehicle must simultaneously comply with all of the limit values set out in Annex I to Regulation No 715/2007, both in the NEDC test and in real driving conditions. In that regard, like the German Government and the Commission, I am of the opinion that the mere fact that an element of design increases emissions of a harmful substance, on the one hand, while reducing emissions of other harmful substances, on the other, does not constitute a ‘reduction in the effectiveness of the emission control system’ within the meaning of Article 3(10) of that regulation. Indeed, as has already been pointed out, having regard to changes in the combustion temperature in a diesel engine, emissions of harmful substances may increase for some of those substances while emissions of other substances decrease. Such changes are part of the normal operation of an engine, provided that the various emission limit values for harmful substances are complied with, including as regards the substance ‘combined mass of total hydrocarbons and oxides of nitrogen’.
62.      By contrast, an element of design that leads to an increase in emissions of at least one harmful substance above the limit value applicable to that substance, as set out in Annex I to Regulation No 715/2007, must be considered to be an element that ‘reduces the effectiveness of the emission control system’, within the meaning of Article 3(10) of that regulation, even if, at the same time, emissions of other harmful substances decrease significantly. In such a case, the emission control system does not achieve the objective of reducing emissions of gaseous pollutants under the conditions set out in that regulation.
63.      In its written observations, the German government submits that one of the decisive criteria in order to find the presence of a defeat device is the reduction of the effectiveness of the emission control system. According to that government, it is doubtful that combustion, as the primary process of a diesel engine, may form part of the pollutant gas emissions control system.
In that regard, it is true that, according to the Court’s case-law,
Annex I
of Regulation No 692/2008 draws a distinction between the engine and the pollution control system. (23) Nevertheless, in is second question in Case C‑251/23 and its first question in Case C‑308/23, the referring court refers to ‘an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the results of the sensing operation’. In those circumstances, the referring court assumes that the change in the emissions of harmful substances results not from the combustions process of a diesel engine in itself, but rather from an element of design of the vehicle, namely the exhaust gas recirculation control system operating according to a temperature window or the engine coolant thermostat control system. According to settled case-law of the Court, under the division of jurisdiction between the Courts of the European Union and the national courts, the Court must take into account the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Therefore, since the referring court has defined the factual and legislative context of the questions it is asking, it is not for the Court to verify the accuracy of those questions. (24)
64.      In the light of the foregoing, I propose that the second and third questions in Case C‑251/23 and the first and second questions in Case C‑308/23 be answered to the effect that Article 3(10) of Regulation No 715/2007 must be interpreted as meaning that an element of design present in a diesel motor vehicle which alters the combustion parameters by increasing emissions of a harmful substance while simultaneously reducing emissions of other harmful substances in a situation where that increase results in the limit value applicable to the harmful substance in question, as set out in Annex I to that regulation, being exceeded
constitutes a ‘defeat device’, within the meaning of that provision.
D.      The fifth question in Case C‑308/23
65.      By its fifth question in Case C‑308/23, the referring court asks, in essence, whether Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device may fall within the exception to the prohibition on the use of such devices where that device, on the one hand, is necessary to ensure the safe operation of the vehicle but, on the other hand, is not necessary to protect the engine from damage or accident.
66.      Mercedes-Benz Group submits that that question is inadmissible for lack of relevance to the resolution of the dispute in the main proceedings in that the exhaust system constitutes an integral and necessary part of any combustion system, including the combustion engine. In addition, the fire protection of the diesel particulate filter ensures the safe operation of the vehicle, which might otherwise catch fire. The measures necessary to prevent the inflammation of that filter are therefore justified under Article 5(2)(a) of Regulation No 715/2007, without it being necessary to address the question referred.
67.      In that regard, it should be borne in mind that it is solely for the national court before which the dispute in the main proceedings has been brought to assess the need for a preliminary ruling and the relevance of the questions which it submits to the Court, which enjoy a presumption of relevance. Thus, the Court is, in principle, bound to give a ruling where the question submitted concerns the interpretation or validity of a rule of EU law, unless it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to that question. (25)
68.      In the present case, that question, as the referring court points out, is based on the premiss that the particulate filter is not an integral part of the engine of a diesel motor vehicle. However, such a classification is linked to the determination of the concept of ‘engine’, within the meaning of Regulation No 715/2007, a legal question which falls to be determined by that court in relation to the facts in the main proceedings. (26) In any event, it is not clear that the interpretation that is sought bears no relation to the actual facts of the dispute or its purpose.
69.      Under Article 5(2) of Regulation No 715/2007, the use of defeat devices that reduce the effectiveness of emission control systems must be prohibited. However, there are three exceptions to that prohibition, including the exception in Article 5(2)(a) of that regulation, which concerns the case where ‘the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle’.
70.      According to the case-law of the Court, in so far as it lays down an exception to the prohibition on the use of defeat devices that reduce the effectiveness of emission control systems, Article 5(2)(a) of Regulation No 715/2007 must be interpreted strictly. Moreover, it is apparent from the very wording of that provision that, in order to fall within the scope of the exception provided for in that provision, the need for a defeat device must be justified not only in terms of protecting the engine against damage or accident, but also in terms of the safe operation of the vehicle. In view of the use of the conjunction ‘and’ in that provision, it must be interpreted as meaning that the conditions laid down therein are cumulative. (27)
71.      Referring to that case-law, the referring court emphasises that, given that safety risks other than those relating to the engine may be very significant, it is not certain that the defeat device remains prohibited in that case. The justification for a defeat device is legally possible because of risks to safety that do not originate from the engine. Thus, that court states that, on the basis of expert reports obtained in another case concerning the problem of controlling the recirculation of exhaust gases from a diesel motor vehicle, also present in the main proceedings, it was informed that the excessive formation of soot particles may, in certain circumstances, even if they occur very rarely, lead to the particulate filter catching fire during the regeneration process and to a fire occurring in the vehicle.
72.      In that regard, it should be noted that, in the case which gave rise to the judgment in Case C‑134/20, the car manufacturer concerned had submitted that the clogging of components of the exhaust gas recirculation system, by causing the malfunctioning or even the blocking of the EGR valve, is liable to lead to the combustion of the particulate filter and to the engine catching fire, or even, as a result, to the entire vehicle catching fire, which would jeopardise the safe operation of the vehicle. (28) However, the Court, after considering that the EGR valve constitutes a separate component of the engine (29) and stating that the conditions laid down in Article 5(2)(a) of Regulation No 715/2007 are cumulative, held that, having regard to the strict interpretation that must be given to that exception, a defeat device can be justified under that exception only in so far as it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. (30) Therefore, even in a situation of excessive soot particle formation, the need for a defeat device must be justified both in terms of protecting the engine against damage or accident and in terms of the safe operation of the vehicle.
73.      I therefore propose that the answer to the fifth question in Case C‑308/23 should be that Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device may fall within the exception to the prohibition on the use of such devices only where the need for that device is justified not only in terms of protecting the engine against damage or accident, but also in terms of the safe operation of the vehicle.
E.      The fourth and fifth questions in Case C‑251/23 and the sixth to ninth questions in Case C‑308/23
74.      By its fourth and fifth questions in Case C‑251/23 and its sixth to ninth questions in Case C‑308/23, the referring court asks, in essence, whether Article 18(1), Article 26(1), and Article 46 of Directive 2007/46 must be interpreted as precluding national legislation which, in the context of a dispute between the purchaser of a motor vehicle and the manufacturer of that vehicle concerning a claim for compensation relating to a defeat device fitted to that vehicle
or other unlawful switches or controls, imposes the entire burden of proving the existence of that defeat device, within the meaning of Article 3(10) of Regulation No 715/2007, and the absence of an exception to the prohibition on the use of such a device, within the meaning of Article 5(2)(a) of that regulation, on that purchaser, without the vehicle manufacturer having to provide any information in that regard in the course of the investigation of the case.
75.      In the present case, the referring court states that the allocation of the burden of proof under German law provides, in absolute terms, that the purchaser of a vehicle must prove in their entirety all the actual conditions of the existence of a defeat device
or other unlawful switches or controls, in so far as he or she must prove the existence of damage and the infringement of a protective law. Without the production of documents and the communication of programmes, which the car manufacturer is not required to do under German law, the mere existence of a defeat device
or other unlawful switches or controls could, at most, be proved at the cost of very expensive tests.
76.      Mercedes-Benz Group and the German Government submit that those questions are inadmissible on the grounds that the statement of facts is inadequate and that the national legal framework is inadequately and inaccurately set out. Instead of presenting the Court with a precise statement of national law and, on that basis, asking specific questions as to the compatibility of certain provisions of national law with the principle of effectiveness of EU law, the referring court is asking the Court to draw up a scheme for apportioning the burden of allegation and proof in civil proceedings. Furthermore, in so far as the referring court refers to the radiator flap in Case C‑308/23, the questions referred for a preliminary ruling are not relevant for the purposes of resolving the dispute, since the flap is not an integral part of the emission control system.
77.      In that regard, it should be borne in mind that, according to the settled case-law of the Court, in the context of the allocation of jurisdiction between the courts of the European Union and the national courts, it is for the Court to take account of the factual and regulatory context in which the questions referred for a preliminary ruling arise, as defined in the order for reference. Therefore, since the referring court has defined the factual and legislative context of the questions it is asking, it is not for the Court to verify the accuracy of those questions. (31) In the present case, the referring court questions to what extent certain conditions for the existence of a defeat device or other unlawful switches or controls could not be proved or refuted and, consequently, which party bears the burden of proof in respect of those conditions. By their objections to the admissibility of those questions for a preliminary ruling, Mercedes-Benz Group and the German Government challenge the legal and factual findings made by the referring court and its assessment as regards the relevance of those questions in order to resolve the dispute in the main proceedings. However, it is not for the Court to take the place of the referring court as regards either the determination of the facts or the national legislative context or as regards such an assessment. In addition, the Court is asked to respond to those questions by interpreting EU law and, accordingly, may do so without making a decisive determination as regards the facts in the main proceedings. The fourth and fifth questions in Case C‑251/23 and the sixth to ninth questions in Case C‑308/23 are therefore admissible.
78.      As to the substance, it should be recalled that, according to the case-law of the Court, it follows from Article 18(1), Article 26(1) and Article 46 of Directive 2007/46, read in conjunction with Article 5(2) of Regulation No 715/2007, that the Member States are required to provide that the purchaser of a motor vehicle equipped with a prohibited defeat device, within the meaning of Article 5(2) of that regulation, has a right to compensation from the manufacturer of that vehicle where that device has caused damage to that purchaser. In the absence of provisions of EU law governing the detailed rules under which purchasers concerned by the acquisition of such a vehicle may obtain compensation, it is for each Member State to determine those rules. That being said, national legislation which makes it, in practice, impossible or excessively difficult for the purchaser of a motor vehicle to obtain adequate compensation for the damage caused to him or her by the infringement, by the manufacturer of that vehicle, of the prohibition laid down in Article 5(2) of Regulation No 715/2007 would not be compatible with the principle of effectiveness. Subject to that reservation, the national courts are entitled to ensure that the protection of rights guaranteed by the legal order of the European Union does not result in unjust enrichment of the persons concerned. (32)
79.      In that regard, again according to the case-law of the Court, in order to ensure compliance with the principle of effectiveness, the national court, if it finds that requiring a party to bear the burden of proof is likely to make it impossible or excessively difficult for such evidence to be adduced, because inter alia that evidence relates to information which that party cannot access, is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document. (33) In addition, the principle of effectiveness implies a requirement of judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, that is binding on the national court. (34)
80.      It follows from that case-law that the national court seised may, in particular, require the manufacturer of the vehicle concerned to produce certain documents in order to determine whether, as the purchaser of that vehicle maintains, it is fitted with a defeat device, within the meaning of Article 3(10) of Regulation No 715/2007, or other unlawful switches or controls. Furthermore, compliance with the principle of effectiveness implies that, where tests are necessary for the purposes of that determination and they are costly, the national court may decide to require the manufacturer to bear part of the cost of those tests. Similarly, the national court may consider that the purchaser is not obliged to pay all the costs of an expert report in advance. (35)
81.      In those circumstances, I propose that the answer to the fourth and fifth questions in Case C‑251/23 and the sixth to ninth questions in Case C‑308/23 should be that Article 18(1), Article 26(1) and Article 46 of Directive 2007/46 must be interpreted as meaning that, in order to ensure compliance with the principle of effectiveness of EU law, they preclude national legislation which, in the context of a dispute between the purchaser of a motor vehicle and the manufacturer of that vehicle concerning a claim for compensation relating to a defeat device fitted to that vehicle or other unlawful switches or controls, imposes the entire burden of proving the existence of that defeat device, within the meaning of Article 3(10) of Regulation No 715/2007, and the absence of an exception to the prohibition on the use of such a device, within the meaning of Article 5(2)(a) of that regulation, on that purchaser, without the vehicle manufacturer having to provide any information in that regard in the course of the investigation of the case.
F.      The sixth to eighth questions in Case C‑251/23 and the tenth to twelfth questions in Case C‑308/23
82.      By its sixth to eighth questions in Case C‑251/23 and its tenth to twelfth questions in Case C‑308/23, the referring court asks, in essence, whether Article 3(36) and Article 18(1) of Directive 2007/46 must be interpreted as meaning that the issue, by the manufacturer, of a certificate of conformity to the individual purchaser of a vehicle is intended specifically to protect that purchaser against the acquisition of a vehicle which does not comply with the requirements of EU law and whether, in the event of the issue of an incorrect certificate of conformity as a result of mere negligence, the Member State concerned is required to confer on that purchaser the right to obtain reimbursement, at his or her request, of the costs of acquiring the vehicle, where appropriate in direct exchange for the surrender of the vehicle and transfer of its ownership after deduction of the value of any other advantages which he or she may have derived from the acquisition of the vehicle.
83.      The referring court states that it has supplemented its request for a preliminary ruling with those questions, as well as with the ninth question in Case C‑251/23 and the thirteenth question in Case C‑308/23, in the light of the judgments which the Bundesgerichtshof (Federal Court of Justice, Germany) delivered on 26 June 2023 (36) following the judgment in Case C‑100/21. In the present case, OB and YV exercised the right conferred by Paragraph 823(2) of the German civil code, which presupposes infringement of a law intended to protect others. However, the Bundesgerichtshof (Federal Court of Justice) has held that the interest protected by EU law consists solely in the purchaser of a vehicle not having his assets reduced, as a result of a merely negligent infringement by the manufacturer of the EU exhaust gas legislation, in relation to the condition in which he or she would have been if he or she had not concluded the contract (‘difference hypothesis’). The protection of EU law does not extend to the purchaser’s interest in not being bound by the contract. The Bundesgerichtshof (Federal Court of Justice) does not therefore grant the purchaser of such a vehicle any right to reimbursement of the costs incurred in acquiring the vehicle – where appropriate in direct exchange for the surrender of the vehicle and the transfer of its ownership after deduction of the value of any other advantages which he or she may have derived from the acquisition of the vehicle – but only a right to reimbursement of any detrimental depreciation.
84.      In that regard, it should be noted that, according to the case-law of the Court, it follows from Article 18(1), Article 26(1) and Article 46 of Directive 2007/46 that that directive establishes a direct link between the car manufacturer and the individual purchaser of a motor vehicle intended to guarantee to the latter that that vehicle complies with the relevant EU legislation. In particular, since the manufacturer of a vehicle must comply with the requirements arising from Article 5 of Regulation No 715/2007 when issuing the certificate of conformity to the individual purchaser of that vehicle with a view to the registration and sale or entry into service of that vehicle, that certificate allows that purchaser to be protected against that manufacturer’s failure to fulfil its obligation to place on the market vehicles which comply with that provision. It cannot be ruled out that a vehicle type covered by an EC type-approval allowing that vehicle to be driven on the road may, initially, be approved by the approval authority without the presence of software programmed according to a temperature window having been disclosed to it. In that respect, Directive 2007/46 envisages the situation in which the unlawfulness of an element of design of a vehicle, for example in the light of the requirements of Article 5 of Regulation No 715/2007, is discovered only after that approval has been granted. Thus, Article 8(6) of that directive provides that that authority may cancel the type-approval of a vehicle. Furthermore, it follows from the first and third sentences of Article 13(1) of that directive that, where a manufacturer informs a Member State which has granted EC type-approval of a change in the information package, that Member State may, where necessary, decide, in consultation with the manufacturer, that a new EC type-approval is to be granted. Lastly, Article 30(1) of Directive 2007/46 provides that, if a Member State which has granted an EC type-approval finds a lack of conformity to the vehicle type it has approved, it is to take the necessary measures, including, where necessary, the withdrawal of that type-approval, to ensure that the produced vehicles are brought into conformity with that type. (37)
85.      Furthermore, according to the Court, the unlawfulness of a defeat device fitted to a motor vehicle, discovered after the grant of EC type-approval for that vehicle, is capable of calling into question the validity of that type-approval and, by extension, the validity of the certificate of conformity intended to certify that that vehicle, belonging to the series of the type approved, complied with all regulatory acts at the time of its production. In the light of the rule laid down in Article 26(1) of Directive 2007/46, that unlawfulness is thus liable, inter alia, to create uncertainty as to the possibility of registering, selling or entering into service that vehicle and, ultimately, to harm the purchaser of a vehicle equipped with an unlawful defeat device. The Court concluded that Article 18(1), Article 26(1) and Article 46 of that directive, read in conjunction with Article 5(2) of Regulation No 715/2007, must be interpreted as protecting, in addition to public interests, the specific interests of the individual purchaser of a motor vehicle vis-à-vis the manufacturer of that vehicle where that vehicle is equipped with a prohibited defeat device, within the meaning of the latter provision. (38) Consequently, the Court clearly stated that the purpose of the manufacturer issuing a certificate of conformity to the individual purchaser of a vehicle is specifically to protect that purchaser against the acquisition of a vehicle which does not comply with the requirements of EU law. Thus, the purchaser of such a vehicle is not required to show that he or she has suffered any specific damage, such as the fact that he or she has encountered difficulties in reselling his vehicle. The damage he or she has suffered is linked to the acquisition, as such, of a vehicle fitted with an unlawful defeat device. (39)
86.      As regards the scope of the right to compensation, as set out in point 78 of this Opinion, in the absence of provisions of EU law governing the arrangements for obtaining compensation by purchasers affected by the acquisition of a vehicle fitted with an unlawful defeat device, it is for each Member State to determine those arrangements, provided that the principle of the effectiveness of EU law is respected. In that regard, I share the view of the Mercedes-Benz Group and the German Government that, in the absence of provisions of EU law, the Member State concerned is not obliged to confer on the purchaser a right against the manufacturer to release him or her in full from the acquisition of the vehicle, that is to say, to be reimbursed for the costs of acquiring the vehicle, where appropriate, in direct exchange for the surrender of the vehicle and the transfer of its ownership less the value of the benefits which he or she has derived from the vehicle. Such an interpretation is not contrary to the principle of effectiveness in that the purchaser has a right to compensation for the damage suffered in the form of a refund corresponding to the amount of the loss of value resulting from the economically disadvantageous acquisition of a vehicle which does not comply with the requirements of EU law. (40)
87.      In that respect, as the Court has held, rather than purely financial damage, the damage in question is material damage resulting from a loss in value of each vehicle concerned and stemming from the fact that, with the disclosure that software which manipulates data relating to exhaust gas emissions was installed, the purchaser received, in return for the payment made to purchase such a vehicle, a vehicle which is defective and, accordingly, has a lower value. Therefore, where vehicles equipped by their manufacturer with software that manipulates data relating to exhaust gas emissions are sold, the damage suffered by the final purchaser is neither indirect nor purely financial and occurs when such a vehicle is purchased from a third party. (41)
88.      I therefore propose that the answer to the sixth to eight questions in Case C‑251/23 and the tenth to twelfth questions in Case C‑308/23 should be that Article 3(36) and Article 18(1) of Directive 2007/46 must be interpreted as meaning that the issue, by the manufacturer, of a certificate of conformity to the individual purchaser of a vehicle is intended specifically to protect that purchaser against the acquisition of a vehicle which does not comply with the requirements of EU law and that, in the event of the issue of an incorrect certificate of conformity as a result of mere negligence, that purchaser has a right to compensation for the damage suffered in the form of reimbursement corresponding to the amount of the loss of value suffered, without the Member State concerned being required to confer on that purchaser the right to obtain reimbursement of the costs of acquiring that vehicle, where appropriate in direct exchange for the surrender of the vehicle and transfer of its ownership after deduction of the value of any other advantages which he or she may have derived from the acquisition of that vehicle.
G.      The ninth question in Case C‑251/23 and the thirteenth question in Case C‑308/23
89.      By its ninth question in Case C‑251/23 and its thirteenth question in Case C‑308/23, the referring court asks, in essence, whether the right to compensation of the purchaser of a vehicle which does not comply with the requirements of EU law as regards its exhaust emissions and/or the characteristics of its emission control system may be capped at 15% of the purchase price of that vehicle.
90.      The referring court refers to the judgments of the Bundesgerichtshof (Federal Court of Justice) of 26 June 2023, (42) in which that court held that the right to compensation of the purchaser of a vehicle fitted with an unlawful defeat device should be limited to a minimum of 5% of the purchase price of that vehicle and a maximum of 15% of the purchase price.
91.      In that regard, it must be observed that, as the German Government and the Commission submit, although the orders for reference provide information concerning the purchase price of vehicles 1 and 2, they do not however contain any information concerning the amount of the loss of value suffered by OB and YV.
Consequently, those orders do not show that OB and YV suffered damage in excess of 15% of the respective purchase prices of those vehicles. In those circumstances, I am of the opinion that those questions are hypothetical and, consequently, inadmissible.
V.      Conclusion
92.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Landgericht Duisburg (Regional Court, Duisburg, Germany) as follows:
(1)      Article 4(2) and Article 5(1) 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, as amended by Commission Regulation (EU) No 459/2012 of 29 May 2012,
must be interpreted as meaning that
a vehicle equipped with a Euro 5 generation diesel engine does not comply with the emission limit values set out in Annex I to that regulation, irrespective of the existence of a defeat device, in a situation where, when the engine of that vehicle is warm, it emits more than 180 mg/km of nitrogen oxides when, in that state, it carries out the ‘New European Driving Cycle’ (NEDC) test, in so far as driving with a warm engine constitutes normal use of that vehicle, within the meaning of those provisions, namely in real driving conditions, as they are usually present in the territory of the European Union.
(2)      Article 4(2) and Article 5(1) of Regulation No 715/2007, as amended by Regulation No 459/2012,
must be interpreted as meaning that
a vehicle equipped with a Euro 5 or Euro 6 generation diesel engine does not comply with the emission limit values laid down in Annex I to that regulation, irrespective of the existence of a defeat device, where, in a situation where an element of design present in that vehicle modifies the combustion parameters by increasing the emissions of a harmful substance while simultaneously reducing the emissions of other harmful substances, that increase causes the limit value applicable to the harmful substance in question, as set out in that annex, to be exceeded.
(3)      Article 3(10) of Regulation No 715/2007, as amended by Regulation No 459/2012,
must be interpreted as meaning that
an element of design present in a diesel motor vehicle which alters the combustion parameters by increasing emissions of a harmful substance while simultaneously reducing emissions of other harmful substances in a situation where that increase results in the limit value applicable to the harmful substance in question, as set out in Annex I to that regulation, being exceeded constitutes
a ‘defeat device’, within the meaning of that provision.
(4)      Article 5(2)(a) of Regulation No 715/2007, as amended by Regulation No 459/2012,
must be interpreted as meaning that
a defeat device may fall within the exception to the prohibition on the use of such devices only where the need for that device is justified not only in terms of protecting the engine against damage or accident, but also in terms of the safe operation of the vehicle.
(5)      Article 18(1), Article 26(1) and Article 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 (Framework Directive), as amended by Commission Regulation (EU) No 136/2014 of 11 February 2014,
must be interpreted as meaning that,
in order to ensure compliance with the principle of effectiveness of EU law, they preclude national legislation which, in the context of a dispute between the purchaser of a motor vehicle and the manufacturer of that vehicle concerning a claim for compensation relating to a defeat device fitted to that vehicle or other unlawful switches or controls, imposes the entire burden of proving the existence of that defeat device, within the meaning of Article 3(10) of Regulation No 715/2007, as amended by Regulation No 459/2012, and the absence of an exception to the prohibition on the use of such a device, within the meaning of Article 5(2)(a) of that regulation, on the purchaser, without the vehicle manufacturer having to provide any information in that regard in the course of the investigation of the case.
(6)      Article 3(36) and Article 18(1) of Directive 2007/46, as amended by Regulation No 136/2014, must be interpreted as meaning that the issue, by the manufacturer, of a certificate of conformity to the individual purchaser of a vehicle is intended specifically to protect that purchaser against the acquisition of a vehicle which does not comply with the requirements of EU law and that, in the event of the issue of an incorrect certificate of conformity as a result of mere negligence, that purchaser has a right to compensation for the damage suffered in the form of reimbursement corresponding to the amount of the loss of value suffered, without the Member State concerned being required to confer on that purchaser the right to obtain reimbursement of the costs of acquiring that vehicle, where appropriate in direct exchange for the surrender of the vehicle and transfer of its ownership after deduction of the value of any other advantages which he or she may have derived from the acquisition of that vehicle.
1      Original language: French.
2      Directive 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 (Framework Directive) (OJ 2007 L 263, p. 1), as amended by Commission Regulation (EU) No 136/2014 of 11 February 2014 (OJ 2014 L 43, p. 12) (‘Directive 2007/46’).
3      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 (OJ 2007 L 171, p. 1), as amended by Commission Regulation (EU) No 459/2012 of 29 May 2012 (OJ 2012 L 142, p. 16) (‘Regulation No 715/2007’).
4      Judgment of 21 March 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices) (C‑100/21, ‘the judgment in Case C‑100/21’, EU:C:2023:229).
5      Regulation of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive
2007/46/EC (OJ 2018 L 151, p. 1).
6      Commission Regulation of 18 July 2008 implementing and amending Regulation (EC) No 715/2007 of the European Parliament and of the Council 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 (OJ 2008 L 199, p. 1).
7      Commission Regulation of 1 June 2017 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council 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, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Commission Regulation (EC) No 692/2008 (OJ 2017 L 175, p. 1).
8      Regulation of the Economic Commission for Europe of the United Nations (UNECE) – Uniform provisions concerning the approval of vehicles with regard to the emission of pollutants according to engine fuel requirements [2015/1038] (OJ 2015 L 172, p. 1; ‘UNECE Regulation No 83’), in the version applicable on the date of the facts in the main proceedings.
9      By Commission Regulation (EU) 2016/427 of 10 March 2016 amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) (OJ 2016 L 82, p. 1), the Commission introduced the real driving emission (RDE) test procedure to reflect emissions measured on the road better.
10      In the context of its request for a preliminary ruling in Case C‑251/23, lodged at the Court on 19 April 2023, the referring court referred the first five questions. In a supplement to that request, lodged at the Court on 14 August 2023, the referring court added the sixth to ninth questions.
11      ‘AdBlue’ is an aqueous solution of urea composed of 32.5% urea and 67.5% demineralised water, which is used as part of an SCR catalyst.
12      In its request for a preliminary ruling in Case C‑308/23, lodged with the Court on 17 May 2023, the referring court referred the first nine questions. In a supplement to that request, lodged with the Court on 1 August 2023, that court added the tenth to thirteenth questions.
13      As defined, inter alia, in Council Directive 92/53/EEC of 18 June 1992 amending Directive 70/156/EEC on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (OJ 1992 L 225, p. 1), point 1 of Annex II thereto.
14      The order for reference refers to the results of the expert assessments carried out during an initial NEDC test carried out after a cold start on 11 November 2020 and a second test carried out immediately after that date with a warm start for the following elements: NOx, carbon monoxide (CO), hydrocarbons (HC), particulates and methane (CH4) and fuel consumption.
15      The referring court also states that the EU legislature expressly recognises the idea of compromise by establishing mixed limit values. For example, for hydrocarbon emissions from diesel motor vehicles, the limit value relates to the sum of combined hydrocarbon and NOx emissions, that is 230 mg/km. The compromise chosen by the manufacturer to comply with that combined limit value is not prescribed by the regulations, but is left to the manufacturer’s discretion.
16      See judgment of 14 July 2022, Volkswagen  (C‑134/20, ‘the judgment in Case C‑134/20’, EU:C:2022:571, paragraphs 45 to 47 and the case-law cited).
17      See judgment in Case C‑134/20 (paragraphs 48 to 50 and the case-law cited).
18      For the engine to function properly, the cooling system must keep the temperature below certain limits.
19      I note that the referring court stated in its decision that, if the Court were to answer the first question in Case C‑251/23 in the affirmative, vehicle 1 would not comply with the requirements of EU law and thus, in any event, Mercedes-Benz Group would be liable to OB for the damage resulting therefrom, without it being necessary, as matters now stand, to answer the other questions. In the event that the Court does not share my suggested interpretation, and for the sake of completeness, I will propose an answer to the other questions raised in the present joined cases.
20      See judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines) (C‑693/18, EU:C:2020:1040, paragraphs 77 and 78).
21      I note that point 2.16. of UNECE Regulation No 83 defines a ‘defeat device’ as ‘any element of design’ which senses temperature, vehicle speed, engine rotational speed, transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of that system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use. Accordingly, I consider that, in the context of the definition of a ‘defeat device’, within the meaning of Article 3(10) of Regulation No 715/2007, the term ‘element of design’ used in both those provisions must be regarded as having the same meaning.
22      See judgment in Case C‑134/20 (paragraphs 39 and 40 and the case-law cited).
23      See, in that regard, judgment in
Case C‑134/20 (paragraph 64), according to which, as regards the concept of ‘engine’, referred to in Article 5(2)(a) of Regulation No 715/2007, Annex I of Regulation No 692/2008 makes an explicit distinction between the engine and the pollution control system, the requirements relating to the ‘engine’ being set out in point 3.3.1.2 of that annex, whereas those relating to ‘pollution control system parameters’ are set out in point 3.3.1.3 of that annex, which, under (c), expressly includes exhaust gas recirculation.
24      See judgment of 29 June 2023, International Protection Appeals Tribunal and Others (Attack in Pakistan) (C‑756/21, EU:C:2023:523, paragraphs 37
and 38 and the case-law cited).
25      Judgment of 22 February 2024, Unedic (C‑125/23, EU:C:2024:163, paragraph 35 and the case-law cited).
26      See, in that regard, concerning the concept of ‘engine’, contained in Article 5(2)(a) of Regulation No 715/2007, footnote 23 of the present Opinion.
27      See judgment in Case C‑100/21 (paragraphs 61 and 62 and the case-law cited).
28      See the judgment in Case C‑134/20 (paragraph 72).
29      See the judgment in Case C‑134/20 (paragraph 64).
30      See the judgment in Case C‑134/20 (paragraph 74).
31      See point 63 of this Opinion.
32      Judgment in Case C‑100/21 (paragraphs 91 to 94).
33      Judgment of 9 July 2020, Vueling Airlines (C‑86/19, EU:C:2020:538, paragraph 43 and the case-law cited).
34      See judgment of 6 October 2015, Orizzonte Salute (C‑61/14, EU:C:2015:655, paragraph 48).
35      At the hearing, the German Government submitted that German law provides for those different rules.
36      Case numbers VIa ZR 335/21, VIa ZR 533/21 and VIa ZR 1031/22.
37      See judgment in Case C‑100/21 (paragraphs 82 and 83).
38      See judgment in Case C‑100/21 (paragraphs 84 and 85).
39      It was to that effect that I stated, in my Opinion in Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices) (C‑100/21, EU:C:2022:420, paragraph 50), that the provisions of Directive 2007/46 protected the interests of an individual purchaser of a motor vehicle, in particular the interest in not acquiring a vehicle which is equipped with an unlawful defeat device.
40      Likewise, the Member State concerned may decide that the non-material damage suffered by the purchaser must be repaired. See, to that effect, my Opinion in
Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices)
(C‑100/21, EU:C:2022:420,
point 49). However, the principle of effectiveness of EU law does not require such reparation.
41      See judgment of 9 July
2020, Verein für Konsumenteninformation (C‑343/19, EU:C:2020:534, paragraphs 34 and 35).
42      See point 83 of this Opinion.