Advocate General Rantos (the “AG”) has provided an Opinion on a request for a preliminary ruling revolving around environmental law for the case Deutsche Umwelthilfe eV v. Bundesrepublik Deutschland, with Volkswagen AG as a joined party, holding case number C 873/19

Background of the case

The Federal Motor Transport Authority in Germany (the “Authority”), which is authorised to grant EC type-approval, authorised, by means of a decision, software installed in the electronic engine controller which, at certain external temperature conditions, results in an increase in nitrogen oxide (“NOx”) emissions. The decision was given for vehicles that are manufactured by the motor vehicle manufacturer Volkswagen AG (“Volkswagen”) and equipped with a Euro 5 generation diesel engine.

Deutsche Umwelthilfe eV (“Deutsche Umwelthilfe”), an approved environmental association, brought an action against the Authority’s decision before the Administrative Court in Schleswig-Holstein, Germany (the “Administrative Court” or the “referring court”), claiming that the software authorised by the Authority constitutes an unlawful ‘defeat device’ for the purposes of Article 5(2) of Regulation (EC) No 715/2007 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 (“Regulation No 715/2007”), since it becomes active when the average temperatures existing in Germany are reached. According to Deutsche Umwelthilfe, car manufacturers should, in principle, design engines which do not require a reduction of the performance of NOx emission control systems when operating under normal conditions, i.e., at average temperatures.

The Federal Republic of Germany submitted that Deutsche Umwelthilfe does not have standing to bring proceedings against the contested decision. The referring court believes that the action is admissible only if the applicant’s rights have been impaired by the administrative decision, and has referred the following questions to the Court of Justice for a preliminary ruling:

  1. Is Article 9(3) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (the “Aarhus Convention”), in conjunction with Article 47 of the European Union (“EU”) Charter of Fundamental Rights (the “Charter”), to be interpreted as allowing approved environmental associations, which are entitled to bring legal proceedings under national law, to challenge before the national courts an administrative decision approving the manufacture of cars with defeat devices that may breach Article 5(2) of Regulation No 715/2007, a provision which prohibits, subject to certain exceptions, the use of defeat devices which reduce the effectiveness of emission control systems?
  2. If Question 1 is answered in the affirmative:
    1. With respect to Article 5(2) of Regulation No 715/2007, should the yardstick for justifying whether there is the need for a defeat device, in terms of protecting the engine against damage or accident and for safe operation of the vehicle, be the state of the art, i.e., what is technically feasible at the time when the EC type approval is granted?
    2. In addition, should account be taken of other circumstances which may make a defeat device permissible, even though, according to the current state of the art alone, the “need” for such a device would not be “justified” within the meaning of Article 5(2)(a) of Regulation No 715/2007?

The first question referred for a preliminary ruling

The AG proposes that the answer to the first question should be that an approved environmental association, which is entitled to bring legal proceedings under national law, must be able to challenge before a national court an administrative decision granting EC type-approval of vehicles which may be contrary to Article 5(2) of Regulation No 715/2007. His reasoning is outlined below.

Article 9(3) of the Aarhus Convention provides that the parties must ensure that members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment, provided the members of the public meet the criteria that may be requisite under national law.

With regards to its scope ratione materiae, Article 9(3) of the Aarhus Convention requires that the act in question contravenes ‘provisions of…national law relating to the environment’. The AG believes that Regulation No 715/2007 falls within the scope of environmental law since, inter alia:

  1. although Regulation No 715/2007 is based on Article 95 EC (now Article 114 TFEU) concerning the establishment and functioning of the internal market, the objective of Regulation No 715/2007 is to ensure a high level of environmental protection and to improve air quality within the EU; and
  2. Article 5(2) of Regulation No 715/2007 concerns ‘defeat devices’ which, although technical in nature, form part of a regulation intended to limit the emission of gaseous pollutants to protect the environment.

Article 5(2) of Regulation No 715/2007 is also directly applicable in Members States and must thus be regarded as forming part of national environmental law.

With regards to the scope ratione materiae of Article 9(3) of the Aarhus Convention, members of the public must meet any requisite criteria under national law. The AG explains that Deutsche Umwelthilfe is an approved environmental association entitled to bring legal proceedings under German Law and whose purpose (as found in its Articles of Association) is to contribute to the protection of nature, the environment and health-and-environment-related consumer protection. Consequently, Deutsche Umwelthilfe may bring legal proceedings before the national courts to promote environmental protection.

The AG next explains that when Article 9(3) of the Aarhus Convention is read in conjunction with the first paragraph of Article 47 of the Charter, an obligation is imposed on Member States to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law. Thus, the effectiveness of Article 5(2) of Regulation No 715/2007 hinges on the right of approved environmental associations to challenge an administrative decision granting EC type-approval. Furthermore, the referring court is to interpret, as much as possible, national procedural rules in accordance with the objectives of Article 9(3) of the Aarhus Convention and effective judicial protection to enable an environmental association to challenge before a national court a decision that may be contrary to EU environmental law.

The second question referred for a preliminary ruling

The AG proposes that, should the first question be answered in the affirmative, the answer to the second question should be that the ‘need’ for a defeat device is not to be assessed in the light of the state of the art at the time when the EC type-approval is granted and it is not necessary to take account of circumstances other than that ‘need’ in order to examine the lawfulness of a defeat device. His reasoning is outlined below.

With respect to Question 2(a), under Article 5(2) of Regulation No 715/2007, the use of defeat devices that reduce the effectiveness of emission control systems is prohibited, with an exception in Article 5(2)(a) which is 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’. The AG believes that the date of the EC type-approval must be used as a basis since EC type-approval concerns new vehicles which must comply with the regulatory acts in force at the time of approval. However, Regulation No 715/2007 does not state that a particular technology should be used for EC type-approval, and thus Regulation No 715/2007 is neutral from a technological perspective. Furthermore, when determining the limit values of pollutant emissions, the EU legislature took account of the interests of vehicle manufacturers, so it is then for those manufacturers to adapt to and apply the appropriate technical means to comply with those limit values, without the technology used necessarily being the best possible or being required. Additionally, permitting a defeat device under Article 5(2)(a) of Regulation No 715/2007 solely because of, for example, high costs of research or maintenance, would render the regulation meaningless. Thus, the exception under Article 5(2) of Regulation No 715/2007 should be excluded where, for financial reasons, the manufacturer designs engines the safety of which is not guaranteed by effective technology to control emissions under normal operating conditions.

As for Question 2(b), with regard to the concept of ‘need’, since Article 5(2)(a) of Regulation No 715/2007 constitutes an exception to the prohibition on the use of defeat devices which reduce the effectiveness of emission control systems, that Article must be interpreted strictly.

Conclusion

To date, this case is still in progress and the judgement of the Court of Justice on this matter remains pending.

The below article was first published in the Malta Independent.