Recently, the Court of Justice of the European Union released a Judgment in Case C-693/18CLCV and Others, concerning the placing on the market of vehicles equipped with software capable of distorting the results of type-approval tests for emissions of gaseous pollutants.
The Court concluded that it is prohibited to install a defeat device, which systematically improves the performance of the vehicle emission control system during approval procedures and, thus, obtains approval of the vehicle.
Legal basis & Court’s reasoning
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 Court pointed out that in order for a prohibited installation of a defeat device, which reduces the effectiveness of the emission control system, to be justified, the presence of such a device must allow the engine to be protected against sudden and exceptional damage, and that only those immediate risks of damage that give rise to a specific hazard when the vehicle is driven are such as to justify the use of a defeat device.
The Court continues that the prohibition laid down by the Regulation would be rendered meaningless and deprived of any useful effect, if the use of prohibited defeat devices were to be permitted with the sole aim of guarding the engine against clogging up and aging. The Court concluded that a defeat device – which systematically improves, during approval procedures, the performance of the vehicle emission control system to observe the emission limits set by Regulation No 715/2007 and, thus, obtain approval of the vehicle – cannot come within the scope of the exception to the prohibition on such devices provided for by the Regulation, even if that device contributes to preventing the aging or clogging up of the engine.
Additional clarifications provided by the Court:
- Concerning the examination on whether the software is considered as an ‘element of design’ for the purposes of Regulation No 715/2007, as there is no definition of the concept of ‘element of design’, the Court clarified 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 concluded that, as the effectiveness of the pollution 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 installed on the engine control calculator does constitute as an ‘element of design’, for the purposes of Regulation No 715/2007;
- The Court determined whether the technology used in the EGR system, which reduces emissions produced upstream comes within the scope of the concept of ‘emission control system’, for the purposes of the Regulation. As the objective of reducing emissions is set out in the Regulation’s preamble, the Court found it necessary to make provision for devices intended to measure and manage emissions while a vehicle is in use. The Court stated that the Regulation sets the objective to be met by car manufacturers – to limit tailpipe emissions, without specifying the means to achieve it. It is apparent from Regulation No 715/2007 that the concept of ‘emission control system’ includes the technologies and the strategy internal to vehicle engines which seek to limit the production of emissions and those intended to reduce emissions after these have been produced. The technologies and strategy which reduce emissions ‘downstream’ – that is, once these are produced and those which reduce emissions ‘upstream’ are within the scope of the concept of ‘emission control system’;
- Having examined the concept of ‘defeat device’ within the meaning of that Regulation, the Court holds that software, such as that at issue – which alters the level of vehicle emissions in relation to the driving conditions that it detects, and guarantees that emission limits are observed only when those conditions correspond to the ones applied during approval procedures – constitutes a defeat device. In addition, it was also established that software constitutes a defeat device, even if an improvement in the performance of the emission control system can be observed, on specific occasions, in normal conditions of vehicle use. The Court added that the fact that normal conditions of vehicle use can exceptionally correspond to the driving conditions applied during approval procedures and improve, on specific occasions, the performance of the device in question is irrelevant to that interpretation, as the objective of reducing emissions is usually not met in normal conditions of vehicle use.
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- Court of Justice of the European Union. (17/12/2020). Judgment in Case C-693/18CLCV and Others (Defeat device on diesel engines). PRESS RELEASE No170/20. Retrieved on 08/02/2021 from https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-12/cp200170en.pdf
- Official Journal of the European Union. (2007). 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 (Text with EEA relevance). Retrieved on 08/02/2021 from https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32007R0715
- Official Journal of the European Union. (2017). Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles and their trailers, and systems, components and separate technical units intended for such vehicles, as regards their general safety and the protection of vehicle occupants and vulnerable road users, amending Regulation (EU) 2018/858 of the European Parliament and of the Council and repealing Regulations (EC) No 78/2009, (EC) No 79/2009 and (EC) No 661/2009 of the European Parliament and of the Council and Commission Regulations (EC) No 631/2009, (EU) No 406/2010, (EU) No 672/2010, (EU) No 1003/2010, (EU) No 1005/2010, (EU) No 1008/2010, (EU) No 1009/2010, (EU) No 19/2011, (EU) No 109/2011, (EU) No 458/2011, (EU) No 65/2012, (EU) No 130/2012, (EU) No 347/2012, (EU) No 351/2012, (EU) No 1230/2012 and (EU) 2015/166 (Text with EEA relevance). Retrieved on 08/02/2021 from https://eur-lex.europa.eu/eli/reg/2019/2144/oj