Request for a preliminary ruling from the Schleswig-Holsteinisches Verwaltungsgericht (Germany) lodged on 29 November 2019 — Deutsche Umwelthilfe e.V. v Bundesrepublik Deutschland

(Case C-873/19)

Language of the case: German

Referring court

Schleswig-Holsteinisches Verwaltungsgericht

Parties to the main proceedings

Applicant: Deutsche Umwelthilfe e.V.

Defendant: Bundesrepublik Deutschland

Joined party: Volkswagen AG

Questions referred

Is Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters ¹  — signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 — in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that it must in principle be possible for environmental associations to challenge before the courts a decision approving the manufacture of diesel passenger cars with defeat devices that are potentially in breach of Article 5(2) 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? ²

If Question 1 is answered in the affirmative:

(a)    Is Article 5(2) 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 to be interpreted as meaning that the yardstick for determining whether the need for a defeat device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle is, in principle, the state of the art, in the sense of what is technically feasible at the time when the EC type approval is granted?

(b)    In addition to the state of the art, should account be taken of other circumstances which may lead to the permissibility of a defeat device, 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 (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?

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¹     Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1).

²     OJ 2007 L 171, p. 1.