ECJ expands standing to bring an action to EU vehicle type approvals
In its judgment of 8 November 2022, Case C-873/19, the European Court of Justice (ECJ) considerably expanded the rights of environmental associations to bring actions as compared to current German practice and – in this case – extended them to include actions against EU vehicle type approvals. The ECJ also emphasised the primacy of application of EU law, with the result that any restrictive provisions of German law (in this case section 42(2) German Code of Administrative Court Procedure – Verwaltungsgerichtsordnung as well as the German Environmental Legal Remedies Act – Umwelt-Rechtsbehelfsgesetz) do not preclude the right to bring an action.
In this specific case, the Environmental Action Germany (Deutsche Umwelthilfe – DUH) brought an action against the German Federal Motor Transport Authority (Kraftfahrt-Bundesamt – KBA) for its approval of a particular type of software used in diesel vehicles, which DUH considers to be an illegal defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007. The importance of such a lawsuit can hardly be overestimated. If successful, it will overturn a type approval for specific vehicles, making it illegal to market or register them (Art. 50 of Regulation (EU) 2018/858) and possibly also to drive such vehicles even if they have already been registered (section 5 German Vehicle Registration Regulation – Fahrzeug-Zulassungsverordnung).
Such an extensive right of action for the DUH was rejected by the Schleswig Administrative Court in a comparable case (ruling dated 13 December 2017, 3 A 26/17). The German legislator also tried to prevent environmental organisations from bringing actions against EU type approvals when amending the Environmental Legal Remedies Act. However, in view of recent case law of the ECJ (Case C-664/15 (Protect)), the Schleswig Administrative Court now considered itself obliged to make a referral to the ECJ. Following this referral, the ECJ ruled in the judgment discussed here that it must be possible for an environmental association, which is in principle entitled to bring an action under national law, to challenge an EU type-approval. The ECJ stated that this follows from Article 9(3) of the Aarhus Convention in conjunction with Article 47 of the EU Charter of Fundamental Rights (CFR). The KBA’s granting of type approval was an act within the meaning of Article 9(3) of the Aarhus Convention, which may have constituted a violation of Article 5(2) of Regulation No 715/2007. This provision was an environmental provision within the meaning of Article 9(3) of the Aarhus Convention. The court concluded by stating that Article 9(3) of the Aarhus Convention, which is therefore applicable, in conjunction with Article 47 CFR, obliges to "ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law" (para. 66 of the judgment).
Against this background, it is for the referring court to examine whether German law allows for an interpretation in conformity with Union law. However, the ECJ goes one step further, probably also with a view to the intention of the German legislature. It ultimately reads the provisions of the Aarhus Convention into the fundamental right under Article 47(1) CFR – with serious consequences: While the Aarhus Convention has no direct effect according to the ECJ’s case law, the fundamental right under Article 47(1) CFR most certainly does. Within its scope of application, it manifestly enjoys primacy over conflicting national law. If an interpretation in conformity with EU law is not possible, the primacy of application of Article 47(1) CFR applies, so that any conflicting provisions of German Law, esp. within the German Code of Administrative Court Procedure or Environmental Legal Remedies Act, are to be disapplied.
The result in this specific case is clear: environmental associations such as the DUH have standing to bring an action against EU type approvals. Now the Schleswig Administrative Court will only have to clarify the dogmatic question of how it will implement the ECJ’s requirements, i.e. whether it will interpret German law in conformity with EU law or assume the primacy of application of EU law. It will also have to hand down a substantive ruling on the legality of the defeat device challenged by the DUH; in this respect as well, the ECJ has remained committed to its narrow interpretation of Article 5(2) of Regulation (EC) 715/2007 in the judgment discussed.
This judgment is of particular interest from two points of view. First, of course, because it extends the standing of environmental associations to bring actions against EU type approvals for vehicles if and to the extent that they violate environmental regulations. In view of the extensive new environmental legislation that has been enacted in recent years, this new right of action is very broad. Thus, it is not surprising that this ruling made the DUH euphoric. Ultimately, however, the ECJ’s decision also brings the Aarhus Convention and the German Environmental Legal Remedies Act to the fore once again and draws attention to the fundamental rights of action of environmental associations, which go far beyond EU type approvals. This sweeping right of action, in conjunction with the current goals of the increasing number of climate lawsuits, the trend of “climate litigation”, makes the second essential significance of this decision obvious. Companies are therefore well advised to scrupulously comply with all environmental law requirements to prevent vulnerability to such actions.