Update 23 November 2022 The Court, in Grand Chamber, has agreed with its AG, emphasising ia the environmental objectives of the type approval Regulation (ia reduction of NOx emissions from diesel vehicles in order to improve air quality and comply with limit values for pollution) which therefore makes it part of the “law relating to the environment” within the meaning of Article 9(3) Aarhus Convention .
Volkswagen Dieselgate (the car manufacturer’s fraudulent manipulation of test results to circumvent car emission standards) continues to exercise plenty a litigator, across various fields. Consumer protection litigation is underway in many jurisdictions, often taken the form of class actions. The environmental fall-out of the scandal has not yet completed either, particularly seeing as Volkswagen like all car manufacturers continues to have to submit cars for type approval under EU product laws. This process it appears involves all sorts of tweaking of a car’s engine to make it resemble real driving and use conditions, moreover the standard use of the vehicle likewise may require installing a defeat device to protect the engine e.g. in starting conditions. Not all tweaking qualifies as a defeat device and not all ‘defeat devices’ are illegal under the Regulation.
Consumer and environmental organisations now having discovered the important impact of such test (previously they were largely the exclusive domain of car enthusiasts and engineers) on the subsequent legality of any defeat devices, they routinely challenge national authorities’ decisions to accept engines with tweaked specifications as not being ‘defeat devices’ under Regulation 715/2007.
In Case C‑873/19 Deutsche Umwelthilfe the challenge for the referring national court was that the national German legislation detailing standing in administrative courts, would have to be interpreted contra legem for it to grant access to an environmental NGO in cases such as type approval decisions. This would imply it would fall outside the national courts ‘Marleasing’ obligation to interpret and apply national law as much as possible in line with EU law requirements (see here for a succinct tutorial on the EU law issues).
The referring court argues that the German law at issue was intended as an implementation of the EIA Directive 85/337, particularly of that Directive’s provisions for challenges to national authorities impact assessment of ‘projects’ and that a challenge to a vehicle’s type approval can with the best intentions not be held to be such ‘project’. The national courts queried the CJEU as to whether in cases such as these, there would be a direct source of standing in EU. In light of the CJEU case-law that Article 9(3) of the Aarhus Convention in itself, has no direct effect in EU law (CJEU Protect) It suggested the combined application of Article 9(3) of the Aarhus Convention and Article 47 of the EU Charter of Fundamental Rights (Right to an effective remedy and to a fair trial).
Advocate-General Rantos (73) brushed aside suggestions that such an opening would force an actio popularis on German civil procedure law, seeing as national law, backed by the Aarhus Convention, imposes a number of substantial requirements upon associations prior to being granted general standing. He firmly suggested the combined application of these Articles does indeed directly require the type of standing as in the specific case, seeing as otherwise the effectiveness of both the type approval Regulation, and Article 47 of the Charter would be compromised.