Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 25 July 2023 – XK v Mercedes-Benz Group AG
(Case C-478/23, Mercedes-Benz Group)
Language of the case: German
Referring court
Landgericht Duisburg
Parties to the main proceedings
Applicant: XK
Defendant: Mercedes-Benz Group AG
Questions referred
Can an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the result of that sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation (EC) No 715/2007 1 and therefore constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, even where the modulation of the parameters of the combustion process effected by the element of design based on the result of the sensing operation increases emissions of one or more harmful substances, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide and/or carbon dioxide?
If Question 1 is to be answered in the affirmative: Under what conditions does the element of design constitute a defeat device in such a case?
Can a circuit or controller in a vehicle, which, by modulating the parameters of the combustion process, increases emissions of one or more harmful substances, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide and/or carbon dioxide, be prohibited under EU law on grounds other than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?
If Question 3 is to be answered in the affirmative: Under what conditions is this the case?
If Question 1 is to be answered in the affirmative: Is a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 permitted under point (a) of the second sentence of Article 5(2) of that regulation even where, although the device is not needed to protect the engine against damage or accident, it is nevertheless needed for the safe operation of the vehicle?
If Question 1 is to be answered in the affirmative: Are provisions of national law which impose on the purchaser of a vehicle, in a legal dispute with the vehicle’s manufacturer, the full burden of proving the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and, moreover, the absence of facts on the basis of which any defeat device in the above sense that may be established is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007, without the opposing party being required to provide information in that regard in the context of a measure of inquiry, contrary to Articles 18(1), 26(1) and 46 of Directive 2007/46/EC 1 as cited in the Mercedes-Benz Group judgment, 2 in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation from its manufacturer in the event that a prohibited defeat device is installed therein (see paragraphs 91 and 93 of that judgment)?
If Question 6 is to be answered in the affirmative: In a legal dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation from the latter, what allocation of the burden of proof is provided for under EU law with respect to the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and the existence of facts on the basis of which such a device is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or are they subject to any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?
If Question 3 is to be answered in the affirmative: Are provisions of national law which impose on the purchaser of a vehicle, in a legal dispute with the vehicle’s manufacturer, the full burden of proving the presence of a circuit or controller which, although it cannot be classified as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, is prohibited on other grounds, without the opposing party being required to provide information in that regard in the context of a measure of inquiry, contrary to Articles 18(1), 26(1) and 46 of Directive 2007/46 as cited in the Mercedes-Benz Group judgment, in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation from its manufacturer in the event that a prohibited circuit or controller is installed therein (see paragraphs 91 and 93 of that judgment)?
If Question 8 is to be answered in the affirmative: In a legal dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation from the latter, what allocation of the burden of proof is provided for under EU law with respect to the presence of a prohibited circuit or controller as referred to in Question 8? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or are they subject to any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?
Do the provisions of Directive 2007/46, in particular Articles 18(1) and 3(36) thereof, also have the objective of specifically protecting the individual purchaser of a vehicle against making a purchase of a vehicle that does not meet the requirements of EU law, which the purchaser would not have made had he or she known that the vehicle did not meet the requirements of EU law, since he or she would not have wished to purchase it?
Irrespective of the answer to the previous question, in the event of an infringement by a vehicle manufacturer of the provisions of Directive 2007/46 or of the provisions of national law adopted on the basis thereof, in particular an infringement by a vehicle manufacturer of the prohibition on issuing an incorrect certificate of conformity, must the manufacturer always or, in any event, in certain cases, be required, under EU law, to exempt the purchaser in full from the consequences of the purchase, resulting from that infringement, of a vehicle that does not comply with the requirements of EU law, and therefore to reimburse to the purchaser, at his or her request, the cost of purchasing the vehicle – if necessary, concurrently against return and transfer of ownership of the vehicle and taking into account the value of any other benefits acquired by the purchaser as a result of purchasing the vehicle? If this is the case only in certain instances: In which instances is this the case?
If Question 11 is to be answered in the negative or in the affirmative only in certain cases: Is the limitation of the right to compensation of the buyer of a vehicle that does not meet the requirements of EU law in respect of its exhaust emissions and/or the characteristics of its emission control system to the amount which the buyer paid in excess in purchasing the vehicle, taking into account the risks associated with the prohibited defeat device, always consistent with the requirements of EU law where the manufacturer has only negligently issued an incorrect certificate of conformity for the vehicle attesting to its compliance with all regulatory acts at the time of its manufacture? If this is not always the case: In which instances is this the case?
In so far as Question 12 is to be answered in the affirmative: Is the limitation of the right to compensation of the buyer of a vehicle that does not meet the requirements of EU law in respect of its exhaust emissions and/or the characteristics of its emission control system to the amount which the buyer paid in excess in purchasing the vehicle, taking into account the risks associated with the prohibited defeat device, but which does not exceed 15% of the purchase price, always consistent with the requirements of EU law where the manufacturer has only negligently issued an incorrect certificate of conformity for the vehicle attesting to its compliance with all regulatory acts at the time of its manufacture? If this is not always the case: In which instances is this the case?
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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).
1 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).
1 Judgment of 21 March 2023, C-100/21, EU:C:2023:229.