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A so-called ‘temperature window’ device can be permissible only under strict conditions

The Kraftfahrt-Bundesamt (Federal Motor Transport Authority, Germany), the competent body in Germany for granting EC type-approval, 1 authorised, for vehicles manufactured by the motor vehicle manufacturer Volkswagen and equipped with a Euro 5 2 generation diesel engine, software installed in the electronic engine controller which, under certain external temperature conditions, reduces the recirculation of exhaust gases (temperature window), 3 which results in an increase in nitrogen oxide (NOx) emissions.

Deutsche Umwelthilfe, an environmental association approved in Germany, has brought an action against that decision before the Schleswig Holsteinisches Verwaltungsgericht (Administrative Court, Schleswig-Holstein, Germany), claiming that that software is a ‘defeat device’ that is prohibited by the EU regulation on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6). 4

According to the Schleswig Holsteinisches Verwaltungsgericht, Deutsche Umwelthilfe does not have standing under German law to bring proceedings to challenge the decision of the KraftfahrtBundesamt. Its rights have not, in that court’s view, been impaired by that decision, which is not one authorising a project for a fixed installation but is a product authorisation.

That court has therefore asked the Court of Justice, first, whether the Aarhus Convention, 5 read in conjunction with the right to an effective remedy laid down by the Charter of Fundamental Rights of the European Union, requires that such an association should be able to challenge before the national courts an administrative decision granting EC type-approval of vehicles in the light of the prohibition on defeat devices.