Order of the Court (Seventh Chamber) of 6 May 2021 – CLCV and Others (Defeat device on diesel engines II)

(Joined Cases C‑690/18 to C‑692/18)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Approximation of laws – Regulation (EC) No 715/2007 – Article 3(10) – Article 5(2) – Defeat device – Motor vehicles – Diesel engines – Emission of pollutants – Program acting on the engine control calculator – Technologies and strategies to limit the production of pollutant emissions)

1. Questions referred for a preliminary ruling — Questions identical to those already ruled on in the case-law — Article 99 of the Rules of Procedure of the Court of Justice (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 99) (see paras 58-60)

2. Approximation of laws — Motor vehicles — Emissions from light passenger and commercial vehicles — Regulation No 715/2007 — Defeat device — Design element — Concept — Software embedded in or acting on the engine control calculator — Software that affects the operation of the emission control system and reduces its effectiveness — Included (European Parliament and Council Regulation No 715/2007, Art. 3(10)) (see para. 61, operative part 1)

3. Approximation of laws — Motor vehicles — Emissions from light passenger and commercial vehicles — Regulation No 715/2007 — Defeat device — Emission control system — Concept — Technologies and strategies to reduce the production of pollutant emissions both after and during their formation — Included (European Parliament and Council Regulation No 715/2007, Art. 3(10)) (see para. 61, operative part 2)

4. Approximation of laws — Motor vehicles — Emissions from light passenger and commercial vehicles — Regulation No 715/2007 — Defeat device — Concept — Device that detects any parameter related to the conduct of the type-approval procedures in order to improve the performance of the emission control system during those procedures — Included — Improvement that can be observed occasionally under normal conditions of vehicle use — Irrelevant (European Parliament and Council Regulation No 715/2007, Art. 3(10)) (see para. 61, operative part 3)

5. Approximation of laws — Motor vehicles — Emissions from light passenger and commercial vehicles — Regulation No 715/2007 — Manufacturers’ type-approval obligations — Prohibition on the use of defeat devices which reduce the effectiveness of emission control systems — Exceptions — Protection of the engine against damage or accident and the safe operation of the vehicle — Scope — Device which improves, during type-approval procedures, the performance of the emission control system — Device which helps to prevent ageing or clogging up of the engine — Precluded (European Parliament and Council Regulation No 715/2007, Art. 5(2)(a)) (see para. 61, operative part 4)

Operative part

1. Article 3(10) 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 1 must be interpreted as meaning that software installed or acting on the electronic engine controller constitutes an ‘element of design’, within the meaning of that provision, where it acts on the operation of the emission control system and reduces its effectiveness.

2. Article 3(10) of Regulation No 715/2007 must be interpreted as meaning that the concept of an ‘emission control system’, within the meaning of that provision, covers both ‘exhaust gas after-treatment’ technologies and strategies that reduce emissions downstream, namely after their formation, and those which, like the exhaust gas recirculation system, reduce emissions upstream, namely during their formation.

3. Article 3(10) of Regulation No 715/2007 must be interpreted as meaning that a device which detects any parameter related to the conduct of the approval procedures provided for by that regulation in order to improve the performance of the emission control system during those procedures, and thus to obtain approval of the vehicle, constitutes a ‘defeat device’ within the meaning of that provision, even if such an improvement may also be observed, occasionally, under normal conditions of vehicle use.