Judgment of the Court (Grand Chamber) of 8 November 2022 (request for a preliminary ruling from the Schleswig-Holsteinisches Verwaltungsgericht — Germany) — Deutsche Umwelthilfe eV v Bundesrepublik Deutschland

(Case C-873/19) (1)

(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)

(2023/C 7/02)

Language of the case: German

Referring court

Schleswig-Holsteinisches Verwaltungsgericht

Parties to the main proceedings

Applicant: Deutsche Umwelthilfe eV

Defendant: Bundesrepublik Deutschland

Joined party: Volkswagen AG

Operative part of the judgment

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, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a situation where an environmental association, authorised to bring legal proceedings in accordance with national law, is unable to challenge before a national court an administrative decision granting or amending EC type-approval which may be contrary to 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.

Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device can be justified under that provision only where it is established that 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 a defeat device, within the meaning of that provision, 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 immediate risks of damage or accident to the engine, which give rise to a specific hazard when driving the vehicle.

(1) OJ C 87, 16.3.2020.