(a)

Are Article 5(2) of Regulation (EC) No 715/2007 (1) in conjunction with Article 3(10) thereof and Article 3 of Implementing Regulation (EC) No 692/2008, (2) to be interpreted as meaning that, in the case of a diesel vehicle falling within the scope of Regulation (EC) No 715/2007, in which systems for exhaust gas recirculation (EGR system) and exhaust after-treatment (SCR system) are installed, classification as a defeat device within the meaning of Article 3(10) of Regulation (EC) No 715/2007 must be based on 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 whether the effectiveness of individual elements of design (for example, a ‘temperature window’ or an SCR catalytic converter), as separate emission control systems, is reduced?

(b)

Are Article 3(10) and Article 5(1) and (2) of Regulation (EC) No 715/2007 to be interpreted as meaning that only the reduction of the effectiveness of the emission control system 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 necessary for (at least) one of the emission limit values laid down in Annex I to Regulation (EC) No 715/2007 to be exceeded?

(a)

Is Article 5(2) of Regulation (EC) No 715/2007, read in conjunction with Article 3(10) thereof, 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 presence 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 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?

(b)

Is Article 5(2) of Regulation (EC) No 715/2007, read in conjunction with Article 3(10) thereof, to be interpreted, in such case as the purchaser bears the burden of allegation in respect of the system as a whole and the burden of proof arising therefrom under national law, to be interpreted as meaning that even national legislation which, in such a case, requires the manufacturer to cooperate in establishing the facts, is contrary to EU law, in particular to the principle of effectiveness, with the result that the manufacturer must bear the burden of proof under EU law in that respect?