The Court of Justice of the European Union (CJEU) ruled, on Tuesday 8 November (case C-873/19), that environmental organisations are entitled to challenge in court the type-approval of motor vehicles equipped with defeat devices that may not comply with EU law.
Following the ‘Dieselgate’ scandal that broke in 2015 (see EUROPE 11620/13), the German manufacturer Volkswagen had to update a software that was not compliant with European law so that the exhaust gas recirculation would be operational in normal use, but under certain particularly restrictive conditions, with full operability only being achieved above a temperature of 15° (the recirculation rate being 85% between -9° and 11° Celsius).
Despite this, the German Federal Motor Transport Authority (‘Kraftfahrt-Bundesamt’ - KBA) authorised the use of this software in 2016. In the same year, Deutsche Umwelthilfe, a German environmental protection association, filed an administrative appeal against this decision. When no decision was taken, the association turned to the Schleswig-Holstein Administrative Court in 2018.
In its defence, the German State then declared that the association had no standing to challenge this decision in court under national law. Therefore, the German State argued that the administrative appeal was inadmissible and that the software update carried out by the German car manufacturer was also in line with EU law.
In order to remove any doubt, the German court decided to refer the matter to the EU Court of Justice to determine whether or not the environmental association had the right to challenge a decision under the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters and the EU Charter of Fundamental Rights.
According to the CJEU, the Aarhus Convention, like the Charter, precludes 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 Regulation No 715/2007 on type-approval of motor vehicles with regard to emissions.
As for the second argument put forward by the German State, the Court recalled that it had already given a judgment on this issue (see EUROPE 12993/18). A defeat device can only be justified if it is established that the device is strictly necessary to avoid “immediate risks” of damage or accidents to the engine, the CJEU repeated.
Furthermore, the “need” for a defeat device is only justifiable when “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”, it added.
To consult the judgment: https://aeur.eu/f/3yf (Original version in French by Pascal Hansens)