A manufacturer cannot install a defeat device which systematically improves, during approval procedures, the performance of the vehicle emission control system and thus obtain approval of the vehicle. The fact that it contributes to preventing the ageing or clogging up of the engine cannot justify the presence of such a defeat device. Company X is a car manufacturer that markets motor vehicles in France. That company placed on the market vehicles equipped with software capable of distorting the results of type-approval tests for emissions of gaseous pollutants, such as nitrogen oxides (‘NOx’). Following disclosures in the press, the Parquet de Paris (Prosecutor’s Office, Paris, France) conducted an investigation which resulted in the launch of a judicial investigation in respect of Company X. That company is alleged to have deceived the purchasers of diesel engine vehicles as to the essential qualities of those vehicles and the controls carried out before they were placed on the market. The vehicles at issue were fitted with an exhaust gas recirculation (EGR) valve. The EGR valve is one of the technologies used by car manufacturers in order to manage and reduce final NOx emissions. It is a system which consists in redirecting part of the exhaust gas from combustion engines to the gas inlet manifold, that is, the engine air supply, in order to reduce final NOx emissions. Before being placed on the market, those vehicles were subject to vehicle approval tests conducted in a laboratory using the New European Driving Cycle, the technical parameters of which are predefined (temperature, speed etc.). The purpose of those tests is, amongst other things, to ascertain the level of NOx emissions and the observance of the limits set by Regulation (EC) No 715/2007 (1) in that regard. The emissions of the vehicles at issue had therefore not been analysed under normal driving conditions. An expert’s report, produced in the context of the judicial investigation procedure, found that the vehicles in question were fitted with a device that allowed the phases of the approval procedure to be detected and the operation of the ERG system to be adjusted in order to observe the regulatory ceiling for emissions. Conversely, in conditions other than those of the approval tests, namely in normal conditions of vehicle use, that device leads to the (partial) deactivation of the EGR system and, as a result, to an increase in NOx emissions. The expert further stated that if the operation of the EGR system in actual traffic had been consistent with that during the approval tests, those vehicles would have produced significantly less NOx. Maintenance operations would, however, have been more frequent and expensive on account, amongst other things, of the engine clogging up more quickly. Regulation No 715/2007 expressly prohibits the use of defeat devices which reduce the effectiveness of emission control systems under normal conditions of vehicle use. The national court decided to refer the matter to the Court of Justice seeking clarifications, in particular with regard to the definition and the scope of the concepts of ‘emission control system’ and ‘defeat device’. In its judgment of today, the Court states that it must be examined, first, whether software installed on the engine control calculator or more generally acting on that calculator must be considered to be an ‘element of design’ for the purposes of Regulation No 715/2007. It recalls that the ‘defeat device’ is defined by that regulation as being ‘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’. Next, the Court finds that the concept of ‘element of design’ is not defined in the legislation. It then states that the term ‘element of design’ designates, in its usual sense, an object manufactured with a view to its inclusion in a functional unit, and that it is clear from the regulation that the concept of ‘defeat device’ referred to therein designates ‘any’ element of design. The Court observes that the effectiveness of the depollution is linked to the opening of the EGR valve, which is controlled by the source code of the software installed on the calculator, and that, as a consequence, where it acts on the operation of the emission control system and reduces the effectiveness thereof, software, such as that at issue, installed on the engine control calculator, constitutes an ‘element of design’, for the purposes of Regulation No 715/2007. The Court goes on to determine whether the technology used in the EGR system which reduces emissions produced upstream – that is, when they are produced within the engine itself – comes within the scope of the concept of ‘emission control system’, for the purposes of the regulation. The Court finds that the regulation does not define the concept of ‘emission control system’ as such but recalls in its preamble that, having regard to the objective of reducing emissions set out therein, it is necessary to make provision for devices intended to measure and manage emissions while a vehicle is in use. The Court states, moreover, that the regulation sets the objective to be met by car manufacturers, namely to limit tailpipe emissions, without specifying the means to achieve it. The text provides that any technical measures taken by the manufacturer must be such as to guarantee the effective limitation, amongst other things, of tailpipe emissions, throughout the normal life of vehicles, under normal conditions of use. The Court recalls that, in vehicle typeapproval procedures, emissions levels are always measured at the outlet of the exhaust pipe. Thus no distinction can be made between the strategy for reducing exhaust gas emissions after these are produced and that intended to limit the production of those emissions. It is therefore apparent from Regulation No 715/2007 that the […]
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