opinion

Deutsche Umwelthilfe v. Germany - opinion

judgment

Deutsche Umwelthilfe v. Germany - judgment

complaint

Deutsche Umwelthilfe v. Germany - complaint

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Volkswagen AG, a German company, used a technology on some of its cars to control and reduce nitrogen oxide (NOx) emissions. The software operating the exhaust gas recirculation (‘EGR’) system was programmed in such a way that, under normal conditions of use, the EGR rate was reduced. In its European Comission (EC) type-approval procedure, the Kraftfahrt-Bundesamt (the German Federal Motor Transport Authority, the “KBA”) found that the software constituted a defeat device prohibited by Regulation No 715/2007. Volkswagen updated the software by setting the EGR valve so exhaust gas purification was fully effective only when the outside temperature was greater than 15 °C. The KBA approved that temperature window in its decision of June 20, 2016. 

Deutsche Umwelthilfe started a legal proceeding against Germany challenging the software’s authorization before the Administrative Court in Schleswig-Holstein, contending that the approved temperature window constituted a defeat device prohibited by the law of the European Union (EU law). The administrative court decided that Deutsche Umwelthilfe lacked standing to bring the challenge under German law. The court asked the Court of Justice of the EU (ECJ) in a preliminary reference whether the environmental organization might have standing based directly on EU law, in particular the Aarhus Convention on access to information, public participation in decision-making, and access to justice in environmental matters, read in conjunction with the Charter of Fundamental Rights of the European Union. The administrative court also ruled that the temperature window constitutes a defeat device but asked the ECJ whether the window can be justified under the exception in Regulation No 715/2007 that “the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle.” 

On November 8, 2022, the ECJ answered that an administrative decision relating to EC type-approval, which may be contrary to EU law, falls within the material scope of Article 9(3) of the Aarhus Convention, since it constitutes an act of a public authority that is alleged to contravene the national environmental provisions. An environmental association has standing under Article 9(3) of the Aarhus Convention if it meets the conditions under national law to bring legal proceedings. The ECJ also notes that member states must comply with the right to an effective remedy, enshrined in Article 47 of the Charter, when establishing the applicable procedural rules. Member states cannot impose criteria so strict that it would be impossible for environmental associations to challenge the acts or omissions that are the subject of the Aarhus Convention. The ECJ concluded that Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, precludes a situation where such an association is unable to challenge a decision granting or amending EC type-approval which may be contrary to EU law. A defeat device can be justified by a need to protect the engine against damage or accident and for the safe operation of the vehicle. The ECJ held that such a justification only exists if the device strictly meets the need to avoid immediate risks of damage or accident to the engine of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. The need for such a defeat device exists only if no other technical solution makes it possible to avoid the above mentioned risks. The opposite conclusion could result in the exception being applied more frequently than the prohibition and would result in a disproportionate infringement of the principle of limiting nitrogen oxide (NOx) emissions. 

Deutsche Umwelthilfe v. Germany

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Using laws and the legal system more broadly to protect vulnerable entities

This sector provides communication services, software development, and IT solutions.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Deutsche Umwelthilfe v. Germany - opinion

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Just transition

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Greenhouse gas

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