Request for a preliminary ruling from the Landgericht Stuttgart (Germany) lodged on 18 September 2020 – S. v AD GmbH
(Case C-440/20)
Language of the case: German
Referring court
Landgericht Stuttgart
Parties to the main proceedings
Applicant: S.
Defendant: AD GmbH
Questions referred
Interpretation of the concept of ‘defeat device’
1-1: Is Article 3 No 10 of Regulation (EC) No 715/2007 1 to be interpreted and applied as meaning that the concept of ‘element of design’ only covers mechanical elements of a physical structure?
In the event that Question 1-1 is answered in the negative:
1-2: Is Article 3 No 10 of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that only the exhaust gas purification system downstream in the engine train (e.g. in the form of diesel oxidation catalytic converters, diesel particulate filters, NOX reduction catalytic converters) is covered by the emission control system?
1-3: Is Article 3 No 10 of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that the emission control system covers both in-engine and non-engine measures to reduce emissions?
Interpretation of the concept of ‘normal use’
2-1: Is Article 5(1) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that the concept of ‘normal use’ only describes driving conditions in the NEDC?
If Question 2-1 is answered in the negative:
2-2: Is the second subparagraph of Article 4(1) in conjunction with Article 5(1) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that manufacturers must ensure that the limits laid down in Annex I to the Regulation are also complied with in everyday use?
If Question 2-2 is answered in the affirmative:
2-3: Is Article 5(1) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that the concept of ‘normal use’ describes the actual driving conditions in everyday use?
If Question 2-3 is answered in the negative:
2-4: Is Article 5(1) of Regulation (EC) to be interpreted and applied as meaning that the concept of ‘normal use’ describes the actual driving conditions in everyday use on the basis of an average speed of 33.6 km/h and a maximum speed of 120.00 km/h?
Permissibility of temperature-dependent emission reduction strategies
3-1: Is Article 5(1) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that it is not permissible to equip a vehicle in which a component likely to affect emissions is designed in such a way that the exhaust gas recirculation rate is regulated in such a way that a low-emission mode is ensured only between 20 °C and 30 °C and is gradually reduced outside that temperature window?
If Question 3-1 is answered in the negative:
3-2: Is Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that a defeat device is prohibited if it continually operates outside of the temperature window between 20 °C and 30 °C to protect the engine and the exhaust gas recirculation is thereby significantly reduced?
Interpretation of the concept of ‘justified’ within the meaning of the exception
4-1: Is point (a) of the second sentence of Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that the use of defeat devices within the meaning of that provision is only justified if, even using the state-of-the-art technology available when type approval was obtained for the vehicle model in question, a protection of the engine against damage or accident and for safe operation of the vehicle could not be guaranteed?
If Question 4-1 is answered in the negative:
4-2: Is point (a) of the second sentence of Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that there is no justification for the use of defeat devices within the meaning of the provision where the parameters recorded in the engine control device are chosen in such a way that, owing to its pre-defined temperatures, exhaust gas purification is not activated or is activated only to a limited extent for the majority of the year in light of the usual expected temperatures?
Interpretation of the concept of ‘damage’ within the meaning of the exception
5-1: Is point (a) of the second sentence of Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that only the engine is to be protected against damage?
5-2: Is point (a) of the second sentence of Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that there has been no damage suffered where wearing parts (such as the EGR valve) are affected?
5-3: Is point (a) of the second sentence of Article 5(2) of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that other components of the vehicle, in particular the components downstream in the exhaust gas system, are also intended to be protected against damage or accident?
Legal and punitive effects of infringements of EU law
6-1: Is the second subparagraph of Article 4(1), the second subparagraph of Article 4(2), Article 5(1) and (2) as well as Article 13 of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that they at least also protect the right of the purchaser of a vehicle to economic self-determination which does not meet the requirements of Regulation (EC) No 715/2007?
If Question 6-1 is answered in the negative:
6-2: Is the second subparagraph of Article 4(1), the second subparagraph of Article 4(2), Article 5(1) and (2) as well as Article 13 of Regulation (EC) No 715/2007 to be interpreted and applied as meaning that the Member States must, for reasons of effet utile, provide for a system of penalties conferring on the purchasers of vehicles the right to bring an action to enforce compliance with market requirements laid down by EU law?
6-3: (a) Is the concept of an ‘effective, proportionate and dissuasive’ measure within the meaning of the second sentence of Article 13(1) of Regulation (EC) No 715/2007 to be interpreted as meaning that damage suffered by the purchaser of the vehicle in accordance with the legislation cannot be offset or reduced by the actual possibility of using a vehicle which does not comply with Regulation (EC) No 715/2007?
(b) Does the concept of effet utile inherent in EU law require that the concept of an ‘effective, proportionate and dissuasive’ measure within the meaning of the second sentence of Article 13(1) of Regulation (EC) No 715/2007 be differentiated according to whether the infringement within the meaning of Article 13(2) of Regulation (EC) No 715/2007 was committed intentionally or merely negligently, and only in the latter case justifies offsetting the actual possibility of using the purchased vehicle?
(c) Is the concept of an ‘effective, proportionate and dissuasive’ measure within the meaning of the second sentence of Article 13(1) of Regulation (EC) No 715/2007 to be interpreted as meaning that, even if a benefit is offset, the manufacturer of the vehicle must pay financial compensation for the use of the capital derived, namely the consideration, and thus pay interest on it?
(d) Is the concept of an ‘effective, proportionate and dissuasive’ measure within the meaning of the second sentence of Article 13(1) of Regulation (EC) No 715/2007 to be interpreted as meaning that the manufacturer of a vehicle which does not comply with Regulation (EC) No 715/2007 must be precluded, at least from the time at which the first serious request for return is made by the purchaser, from offsetting the actual possibility of using the vehicle against the consideration paid?
6-4: Is Articles 18(1) and 26(1) of Directive 2007/46/EC 2 to be interpreted and applied as meaning that the manufacturer is in breach of his obligation to issue a valid certificate of conformity pursuant to Article 18(1) of Directive 2007/46/EC if he has installed in the vehicle an unauthorised defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 and the placing on the market of such a vehicle is contrary to the prohibition on sale without a valid certificate of conformity under Article 26(1) of Directive 2007/46/EC?
6-5: Is it the purpose and intention of Regulation (EC) No 715/2007 and of Directive 2007/46/EC to ensure that the limits laid down in Annex I to Regulation (EC) No 715/2007 or the certificate of conformity as defined in Article 18(1) of Directive 2007/46/EC together with Regulation (EC) No 385/2009 3 establish rights protecting purchasers in such a way that, under EU law, the infringement of the quality-defining limits laid down by the Regulation or the infringement of the right to registration prohibits the offsetting of usage benefits upon reversal of the vehicle purchase transaction vis-à-vis the manufacturer?
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1 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 (OJ 2007 L 171, p. 1).
2 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) (OJ 2007 L 263, p. 1).
3 Commission Regulation (EC) No 385/2009 of 7 May 2009 replacing Annex IX to Directive 2007/46/EC of the European Parliament and of the Council 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 2009 L 118, p. 13).