Case C‑668/16

European Commission

v

Federal Republic of Germany

(Failure of a Member State to fulfil obligations — Directive 2006/40/EC — Emissions from air-conditioning systems in motor vehicles — Article 5(4) and (5) — Directive 2007/46/EC — Approval of motor vehicles — Articles 12, 29, 30 and 46 — Vehicles not conforming to technical requirements — Responsibility of the national authorities)

Summary — Judgment of the Court (Second Chamber), 4 October 2018

1. Approximation of laws — Motor vehicles — Type-approval procedure in the EU –Directive 2007/46 — Type-approval of vehicles — Obligations of the Member States in the event deviation from conformity to the approved type is discovered — Scope

   (European Parliament and Council Directive 2007/46, as amended by Regulation No 371/2010, Recital 2 and Arts 12, 29, 30 and 32)

2. Approximation of laws — Motor vehicles — Type-approval procedure in the EU –Directive 2007/46 — Type-approval of vehicles — Extension of the approval of a vehicle type to other vehicles — Conditions — Need for the extension to be designed to bring about technical progress relating to safety and the protection of the environment —None

   (European Parliament and Council Directive 2007/46, as amended by Regulation No 371/2010, Art. 14(2) and Annex II)

1.  It is clear from the wording of Article 12 and Article 30(1) of Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles that they leave a margin of discretion to the Member States when determining the measures which are necessary to ensure that the vehicles are brought into conformity with the approved type.

   By analogy, with Articles 29 and 32 of Directive 2007/46, under Articles 12 and 30 of the Framework Directive, where the authorities of the Member State concerned are informed by the manufacturer of the vehicles concerned of the existence of a deviation from conformity to the approved type, and that that deviation is justified by cogent and reliable objective evidence establishing the existence of a serious risk to human health and safety or to the environment submitted by that manufacturer, where the applicable requirements have been satisfied, those authorities are justified in not immediately requiring the recall and conversion of the vehicles concerned, or not immediately withdrawing type-approval concerned and in carrying out their own evaluation of the risks before deciding to impose, where necessary, that recall or conversion or the withdrawal of the type-approval. As provided for in Articles 29 and 32 of Directive 2007/46, it is nonetheless for that Member State to immediately inform the Commission and the other Member States of the serious risk of which it has been notified and, where necessary, of the measures suggested by the manufacturer in order to neutralise the risk concerned.

   However, if at the end of that assessment, it appears that the serous risk relied on has not been established, that Member State must then take the necessary measures as soon as possible to ensure the conformity of the vehicles at issue with the approved type is re-established. The approval procedure established by Directive 2007/46, as stated in recital 2 thereof, is based on the principle of total harmonisation, the margin of discretion conferred on Member States by Articles 12 and 30 of thereof cannot permit them to evaluate themselves whether it is necessary to achieve that objective.

   (see paras 69, 71-74)

2.  It is clear from the text of Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles and, more specifically, Annex II thereto, that the manufacturer may determine itself the extent of a vehicle type.

   In that regard, it must be observed that it follows from Article 14(2) of that directive that there is an extension of a vehicle type if further inspections or fresh tests are required, if any information on the EC type-approval certificate has changed, and if new requirements under any of the regulatory acts applicable to the approved vehicle type enter into force. It does not follow from Article 14 or any other provision of the harmonised system that the extension applied for must be designed to bring about technical progress towards the objectives of Directive 2007/46 relating to safety and the protection of the environment.

   (see paras 99, 102, 103)