Summary:
Original Link:
Original Article:
Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 April 2025 – FP v Volkswagen AG
(Case C-251/25, Volkswagen)
Language of the case: German
Referring court:
Oberster Gerichtshof
Parties to the main proceedings:
Appellant on a point of law: FP
Respondent in the appeal on a point of law: Volkswagen AG
Questions referred:
1.
(a) Are Article 5(2) in conjunction with Article 3(10) of Regulation (EC) No 715/2007 and Article 3 of Regulation (EC) No 692/2008 to be interpreted as meaning that, in the case of a diesel vehicle falling within the scope of Regulation No 715/2007, in which systems for exhaust gas recirculation (EGR system) and exhaust after-treatment (SCR system) are installed, classification as a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 must be based on whether the effectiveness of the emission control system as a whole (including all existing exhaust gas recirculation and after-treatment systems in each case) is reduced or on whether the effectiveness of individual elements of design (for example, a ‘temperature window’, an SCR catalytic converter), as separate emission control systems in each case, is reduced?
(b) Are Article 3(10) and Article 5(1) and (2) of Regulation No 715/2007 to be interpreted as meaning that only the reduction of the effectiveness of the emission control system under normal driving conditions – whether of an individual element of design or of the system as a whole (see Question 1(a)) – is decisive for the purposes of classification as a prohibited defeat device, or is it also necessary for (at least) one of the emission limit values laid down in Annex I to Regulation No 715/2007 to be exceeded?
2. In the event that the emission control system as a whole is to be taken as a basis:
(a) Is Article 5(2) in conjunction with Article 3(10) of Regulation No 715/2007 to be interpreted, with regard to the burden of allegation, as meaning that the purchaser of a diesel vehicle discharges his or her burden of allegation in relation to the existence of a prohibited defeat device where he or she claims that there is an element of design (for example, a ‘temperature window’) which reduces the effectiveness of the emission control system under normal driving conditions, and does the manufacturer then bear the burden of alleging that the system as a whole does not lead to any reduction in the effectiveness of the emission control system, or must the purchaser also claim that there are no other elements of design which offset the adverse effect?
(b) Is Article 5(2) in conjunction with Article 3(10) of Regulation No 715/2007, in such case as the purchaser bears the burden of allegation in respect of the system as a whole and the burden of proof arising therefrom under national law, to be interpreted as meaning that even national legislation which, in such a case, requires the manufacturer to cooperate in establishing the facts, is not compatible with EU law, in particular with the principle of effectiveness, with the result that the manufacturer must bear the burden of proof under EU law in this respect?
3. Are Article 3(10), Article 4(2) and Article 5(1) and (2) of Regulation No 715/2007 (in conjunction with Article 3 of Regulation No 692/2008) to be interpreted as meaning that the components of a diesel vehicle likely to affect emissions must be designed, constructed and assembled in such a way that compliance with the emission limit values laid down in Annex I to Regulation No 715/2007 is guaranteed not only in the prescribed tests under the type approval procedure (in the present case: New European Drive Cycle), but also under actual driving conditions in the normal use of the vehicle (in real operation)?