Case C‑873/19

Deutsche Umwelthilfe eV

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Schleswig-Holsteinisches Verwaltungsgericht)

Judgment of the Court (Grand Chamber), 8 November 2022

(Reference for a preliminary ruling – Environment – Aarhus Convention – Access to justice – Article 9(3) – Charter of Fundamental Rights of the European Union – Article 47, first paragraph – Right to effective judicial protection – Environmental association – Standing of such an association to bring an action before a national court against EC type-approval granted to certain vehicles – Regulation (EC) No 715/2007 – Article 5(2)(a) – Motor vehicles – Diesel engine – Pollutant emissions – Valve for exhaust gas recirculation (EGR valve) – Reduction of nitrogen oxide (NOx) emissions limited by a ‘temperature window’ – Defeat device – Authorisation of such a device where the need is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle – State of the art)

1. Questions referred for a preliminary ruling – Jurisdiction of the Court – Interpretation of an international agreement concluded by the European Union and the Member States on the basis of shared competence – Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) – Included

   (Art. 267 TFEU; Aarhus Convention; Council Decision 2005/370)

   (see paragraph 48)

2. International agreements – European Union agreements – Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) – Provisions of that convention concerning access to justice – Administrative decision granting or amending EC type-approval of vehicles which may be contrary to national environmental law – Right to bring legal proceedings of environmental associations forming part of the public concerned – National legislation denying those associations any right to bring legal proceedings – Not permissible

   (Art. 114(3) TFEU; Charter of Fundamental Rights of the European Union, Art. 47 and Art. 51(1); Aarhus Convention, Art. 2(4), Art. 5 and Art. 9(3); European Parliament and Council Directive No 715/2007, Art. 5(2); Council Decision 2005/370)

   (see paragraphs 49-53, 59-65, 67-72, 81, operative part 1)

3. International agreements – European Union agreements – Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) – Provisions of that agreement concerning access to justice – Article 9(3) – Direct effect – Absence – Interpretation by national courts of the procedural rules governing remedies – Obligation to disapply the provisions of national law precluding the exercise of the right to bring proceedings – Scope

   (Charter of Fundamental Rights of the European Union, Art. 47; Aarhus Convention Art. 9(3); Council Decision 2005/370)

   (see paragraphs 66, 75-80)

4. Approximation of laws – Motor vehicles – Emissions from light passenger and commercial vehicles – Regulation No 715/2007 – Manufacturers’ type-approval obligations – Prohibition on using defeat devices which reduce the effectiveness of emission control systems – Exceptions – Device ensuring the protection of the engine against damage or accident and for safe operation of the vehicle – Scope – Device reducing, according to the outside temperature, the effectiveness of the system for recirculating the gaseous pollutants of vehicles during normal vehicle operation and use – Included – Conditions

   (European Parliament and Council Regulation No 715/2007, Art. 5(2)(a))

   (see paragraphs 86-95, operative part 2)

Résumé

Volkswagen AG is a car manufacturer which marketed motor vehicles equipped with a Euro 5 generation EA 189-type diesel engine and with a valve for exhaust gas recirculation (‘the EGR valve’), one of the technologies used by car manufacturers to control and reduce nitrogen oxide (NOx) emissions. The software operating the exhaust gas recirculation (‘EGR’) system was programmed in such a way that, under normal conditions of use, the EGR rate was reduced. Thus, the vehicles concerned did not comply with the NOx emission limit values laid down by Regulation No 715/2007 on type-approval of motor vehicles. ( 1 )

In the EC type-approval procedure for one of those vehicle models, ( 2 ) the Kraftfahrt-Bundesamt (Federal Motor Transport Authority, Germany; ‘the KBA’) found that the software at issue constituted a defeat device ( 3 ) which was not consistent with that regulation. ( 4 )

Volkswagen therefore updated the software by setting the EGR valve so that exhaust gas purification was fully effective only when the outside temperature was greater than 15 °C (‘the temperature window’). By decision of 20 June 2016 (‘the contested decision’), the KBA granted authorisation for the software at issue.

Deutsche Umwelthilfe, an environmental association which is authorised to bring legal proceedings, in accordance with German law, brought an action against the contested decision before the Schleswig-Holsteinisches Verwaltungsgericht (Administrative Court, Schleswig-Holstein, Germany).

That court notes that, under German law, Deutsche Umwelthilfe does not have standing to bring legal proceedings against the contested decision. It is, however, uncertain whether that association can derive such standing directly from EU law. If so, it raises the question whether the temperature window is compatible with Regulation No 715/2007. Having found that that window constitutes a defeat device within the meaning of that regulation, it asks whether the software in question may be authorised on the basis of the exception to the prohibition of such devices laid down in that regulation, ( 5 ) which requires that ‘the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle’.

On a request for a preliminary ruling from that court, the Court of Justice, sitting as the Grand Chamber, rules on the standing of an environmental association to challenge before a national court an administrative decision granting an authorisation which may be contrary to EU law, in the light of the Aarhus Convention ( 6 ) and the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It also specifies the circumstances in which a defeat device may be justified under Regulation No 715/2007. ( 7 )

Findings of the Court

First of all, the Court recalls that under Article 9(3) of the Aarhus Convention, each party must ensure that, where they meet the criteria, if any, laid down in its national law, 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.

In that regard, the Court finds, in the first place, that an administrative decision relating to EC type-approval which may be contrary to Regulation No 715/2007 falls within the material scope of Article 9(3) of the Aarhus Convention, since it constitutes an act of a public authority which is alleged to contravene the provisions of national law relating to the environment. In pursuing the objective of ensuring a high level of environmental protection by reducing NOx emissions from diesel vehicles, Regulation No 715/2007 forms part of ‘national law relating to the environment’ within the meaning of the aforementioned provision. That finding is in no way affected by the fact that the regulation at issue was adopted on the basis of Article 95 EC (now Article 114 TFEU) and not on a specific legal basis for the environment, since, in accordance with Article 114(3) TFEU, the Commission, in its proposals for measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States concerning environmental protection, is to take as a base a high level of protection, taking account in particular of any new development based on scientific facts.

In the second place, the Court points out that an environmental association authorised to bring legal proceedings falls within the personal scope of Article 9(3) of the Aarhus Convention, inasmuch as it is part of the public concerned by that provision and meets the criteria, if any, laid down in national law.

In the third place, as regards the concept of criteria laid down in national law within the meaning of that provision, the Court clarifies that although it follows from Article 9(3) of the Aarhus Convention that Member States may, in the context of the discretion they have in that regard, establish procedural rules setting out conditions that must be satisfied in order to be able to pursue the review procedures referred to in that provision, such criteria relate only to the determination of those persons entitled to bring an action. It follows that Member States may not reduce the material scope of Article 9(3) by excluding from the subject matter of the action certain categories of provisions of national environmental law. Furthermore, Member States must comply with the right to an effective remedy, enshrined in Article 47 of the Charter, when establishing the applicable procedural rules and cannot impose criteria so strict that it would be impossible for environmental associations to challenge the acts or omissions that are the subject of the Aarhus Convention. ( 8 ) The Court concludes from this that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, precludes a situation where such an association is unable to challenge a decision granting or amending EC type-approval which may be contrary to Regulation No 715/2007. ( 9 ) That situation would indeed constitute an unjustified limitation of the right to an effective remedy.

Consequently, it is for the referring court to interpret national procedural law in a manner consistent with the Aarhus Convention and with the right to an effective remedy enshrined in EU law, in order to enable an environmental association to challenge such a decision before a national court. If a consistent interpretation to that effect were to prove impossible and in the absence of direct effect of Article 9(3) of the Aarhus Convention, Article 47 of the Charter confers on individuals a right which they may rely on as such, with the result that it may be relied on as a limit on the discretion left to the Member States in that regard. In such a case, it will be for the referring court to disapply the national provisions precluding an environmental association, such as Deutsche Umwelthilfe, from exercising any right to bring an action against a decision granting or amending EC type-approval which may be contrary to Regulation No 715/2007. ( 10 )

Lastly, the Court finds that the use of a defeat device can be justified by a need to protect the engine against damage or accident and for safe operation of the vehicle, within the meaning of Regulation No 715/2007, ( 11 ) only where that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. Furthermore, the need for such a defeat device exists only where, at the time of the EC type-approval of that device or of the vehicle equipped with it, no other technical solution makes it possible to avoid the abovementioned risks.

( 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 ) Under Article 3(5) of 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), ‘EC type-approval’ means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of EU law.

( 3 ) Within the meaning of Article 3(10) of Regulation No 715/2007. That provision defines a defeat device as ‘any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use’.

( 4 ) Article 5 of Regulation No 715/2007.

( 5 ) Article 5(2)(a) of Regulation No 715/2007.

( 6 ) Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, 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 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’).

( 7 ) Article 5(2)(a) of Regulation No 715/2007.

( 8 ) Article 9(3) of the Arhus Convention.

( 9 ) Article 5(2) of Regulation No 715/2007.

( 10 ) Article 5(2)(a) of Regulation No 715/2007.

( 11 ) Article 5(2)(a) of Regulation No 715/2007.