Case C-182/25, Volkswagen: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 6 March 2025 – TS v Volkswagen AG
Date: 2025-03-06
Institutions: Court of Justice
Subjects: approval, environmental standard, motor car, motor vehicle, motor vehicle industry, motor vehicle pollution, producer's liability, proof, technical specification, technical standard, vehicle parts








C_202504262EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/4262


11.8.2025






Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 6 March 2025 – TS v Volkswagen AG


(Case C-182/25, Volkswagen)

(C/2025/4262)
Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings


Appellant on a point of law: TS

Respondent in the appeal on a point of law: Volkswagen AG

Questions referred







1.a.


Are Article 5(2) of Regulation (EC) No 715/2007, (1) in conjunction with Article 3(10) of that regulation, and Article 3 of Regulation (EC) No 692/2008 (2) to be interpreted as meaning that, in the case of a diesel engine vehicle falling within the scope of Regulation No 715/2007, in which






—


a catalytic converter for the storage of nitrogen oxides including diesel particulate filter and, in addition,










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only an exhaust gas reduction system (EGR system) is installed (the control and effectiveness of which depend on various factors such as ambient temperature, performance requirement, accelerator pedal position, torque, altitude, oxygen content of ambient air, driver behaviour and temperature next to and within the engine and within the exhaust gas recirculation system itself), which has










—


a ‘temperature window’ (a reduction in the EGR rate according to temperature), in respect of which it is established that the EGR rate is reduced when the temperature is below –24 °C and above + 70 °C, but it is not possible to determine whether a reduction in the EGR rate also takes place within the temperature range from –24 °C to + 70 °C,










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an ‘altitude switch’ (a reduction in the EGR rate at an operating altitude greater than 1 000 metres above sea level), and










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a ‘taxi switch’ (a reduction in the EGR rate when operating in idle mode over a period of more than 15 minutes), in respect of which classification as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 must be based on






i.


whether the effectiveness of the emission control system as a whole (including all existing exhaust gas recirculation and after-treatment systems in each case) is reduced, or on










ii.


whether the effectiveness of individual elements of design (for example, a ‘temperature window’, an SCR catalytic converter), as separate emission control systems in each case, is reduced?


















1.b.


Are Article 3(10) and Article 5(1) and (2) of Regulation No 715/2007 to be interpreted as meaning that:






i.


the expression in Article 3(10) of Regulation No 715/2007 ‘… under conditions which may reasonably be expected to be encountered in normal vehicle operation and use …’






—


refers to some of the conditions for the existence of a defeat device, or










—


constitutes in this respect a derogation from the existence of a defeat device or a derogation from the prohibition, which results in the lawfulness of a defeat device only when the absence of such conditions is demonstrated?














ii.


only the reduction of the effectiveness of the emission control system of a diesel vehicle under normal driving conditions – whether of an individual element of design or of the system as a whole (see Question 1.a.) – is decisive for the purposes of classification as a prohibited defeat device, or is it also necessary for (at least) one of the emission limit values laid down in Annex I to Regulation No 715/2007 to be exceeded?










iii.


a defeat device is in any event lawful for the purposes of Article 3(10) of Regulation No 715/2007 where, in real driving conditions and in normal use of the vehicle, the effectiveness of a diesel vehicle’s emission control system is reduced, but the emission limit values laid down in Annex I to Regulation No 715/2007 are complied with?














2.


In the event that, for the purposes of the questions under point 1, the emission control system as a whole is to be taken as a basis:










2.a.


Is Article 5(2) in conjunction with Article 3(10) of Regulation No 715/2007 to be interpreted, with regard to the burden of allegation, as meaning that the purchaser of a diesel vehicle discharges his or her burden of allegation in relation to the existence of a prohibited defeat device where he or she claims that there is an element of design (for example, a ‘temperature window’) which reduces the effectiveness of the emission control system under normal driving conditions, and does the vehicle manufacturer then bear the burden of alleging that the system as a whole does not lead to any reduction in the effectiveness of the emission control system, or must the purchaser also claim that there are no other elements of design which offset the adverse effect?










2.b.


Is Article 5(2) in conjunction with Article 3(10) of Regulation No 715/2007 to be interpreted, with regard to the burden of proof, as meaning that national legislation under which the applicant purchaser bears the burden of proving the existence of a defeat device, and thus not only of proving that an element of design has been installed in the vehicle which reduces the effectiveness of the emission control system under normal driving conditions, but also of proving that no other elements of design have been installed which offset that adverse effect, but the defendant vehicle manufacturer is required to cooperate in establishing the facts, whereby the consequence of non-cooperation is merely that the court integrates that circumstance into its free evaluation of the evidence, is contrary to EU law, such that, when establishing the emission control system as a whole, EU law requires the burden of proof in that regard to be allocated to the defendant vehicle manufacturer?










2.c.


Is Article 5(2) in conjunction with Article 3(10) of Regulation No 715/2007 to be interpreted as meaning that the burden of allegation and the burden of proof concerning the specific temperature range within which a defeat device, in the form of a temperature window, present in the vehicle engine is not active lie with the vehicle manufacturer?










3.a.


Are Article 3(10), Article 4(2) and Article 5(1) and (2) of Regulation No 715/2007, in conjunction with Article 3 of Regulation No 692/2008, to be interpreted as meaning that the components of a diesel vehicle likely to affect emissions must be designed, constructed and assembled in such a way that compliance with the emission limit values laid down in Annex I to Regulation No 715/2007 is guaranteed not only in the prescribed tests under the applicable type approval procedure in each case (in the present case: New European Drive Cycle), but also under actual driving conditions in the normal use of the vehicle (in real operation)?










3.b.


If Question 3.a. is answered in the affirmative:
Is Article 5(2) in conjunction with Article 5(1) and Article 4(3) of Regulation No 715/2007 to be interpreted as meaning that it is not the applicant purchaser but rather the defendant vehicle manufacturer that bears the burden of proving compliance with the emission limit values in real operation?






(1)  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).

(2)  Commission Regulation of 18 July 2008 implementing and amending Regulation 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).


ELI: http://data.europa.eu/eli/C/2025/4262/oj
ISSN 1977-091X (electronic edition)