Order of the Court (Seventh Chamber) of 6 May 2021

1. Questions referred for a preliminary rulingQuestions identical to those already ruled on in the case-lawArticle 99 of the Rules of Procedure of the Court of Justice

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 99)

(see paras 58-60)

2. Approximation of lawsMotor vehiclesEmissions from light passenger and commercial vehiclesRegulation No 715/2007Defeat deviceDesign elementConceptSoftware embedded in or acting on the engine control calculatorSoftware that affects the operation of the emission control system and reduces its effectivenessIncluded

(European Parliament and Council Regulation No 715/2007, Art. 3(10))

(see para. 61, operative part 1)

3. Approximation of lawsMotor vehiclesEmissions from light passenger and commercial vehiclesRegulation No 715/2007Defeat deviceEmission control systemConceptTechnologies and strategies to reduce the production of pollutant emissions both after and during their formationIncluded

(European Parliament and Council Regulation No 715/2007, Art. 3(10))

(see para. 61, operative part 2)

4. Approximation of lawsMotor vehiclesEmissions from light passenger and commercial vehiclesRegulation No 715/2007Defeat deviceConceptDevice that detects any parameter related to the conduct of the type-approval procedures in order to improve the performance of the emission control system during those proceduresIncludedImprovement that can be observed occasionally under normal conditions of vehicle useIrrelevant

(European Parliament and Council Regulation No 715/2007, Art. 3(10))

(see para. 61, operative part 3)

5. Approximation of lawsMotor vehiclesEmissions from light passenger and commercial vehiclesRegulation No 715/2007Manufacturers’ type-approval obligationsProhibition on the use of defeat devices which reduce the effectiveness of emission control systemsExceptionsProtection of the engine against damage or accident and the safe operation of the vehicleScopeDevice which improves, during type-approval procedures, the performance of the emission control systemDevice which helps to prevent ageing or clogging up of the enginePrecluded

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

(see para. 61, operative part 4)

Operative part

1. Article 3(10) 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 1 must be interpreted as meaning that software installed or acting on the electronic engine controller constitutes an ‘element of design’, within the meaning of that provision, where it acts on the operation of the emission control system and reduces its effectiveness.

2. Article 3(10) of Regulation No 715/2007 must be interpreted as meaning that the concept of an ‘emission control system’, within the meaning of that provision, covers both ‘exhaust gas after-treatment’ technologies and strategies that reduce emissions downstream, namely after their formation, and those which, like the exhaust gas recirculation system, reduce emissions upstream, namely during their formation.

3. Article 3(10) of Regulation No 715/2007 must be interpreted as meaning that a device which detects any parameter related to the conduct of the approval procedures provided for by that regulation in order to improve the performance of the emission control system during those procedures, and thus to obtain approval of the vehicle, constitutes a ‘defeat device’ within the meaning of that provision, even if such an improvement may also be observed, occasionally, under normal conditions of vehicle use.

4. Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device which systematically improves the performance of the vehicle emission control system during type-approval procedures in order to comply with the emission limits laid down by that regulation, and thus obtain the approval of those vehicles, cannot fall within the scope of the exception to the prohibition on such devices laid down in that provision, which relates to the protection of the engine against damage or accident and the safe operation of the vehicle, even if such a device helps to prevent the ageing or clogging up of the engine.