Felix Beck, a PhD candidate at the University of Freiburg, Germany, and former research assistant to Prof. Dr. Silja Vöneky, is currently a research assistant at the law firm POSSER SPIETH WOLFERS & PARTNERS.*
In a recent legal opinion concerning the use of emissions-reducing “defeat devices” in motor vehicles, Advocate General (AG) Sharpston addressed the interpretation of European Union Regulation 715/2007. The case, which centers around an investigation by the Parisian Prosecutor’s Office into potential violations by vehicle manufacturers, seeks to clarify the definition of a “defeat device” and the conditions under which its use is permissible.
Regulation 715/2007 defines a “defeat device” as any element designed to sense parameters like temperature or speed to reduce the effectiveness of a vehicle’s emissions control system under normal operating conditions. AG Sharpston clarified that this definition covers technologies reducing emissions after formation and strategies limiting their initial formation.
While Article 5(2) of the regulation prohibits using defeat devices to reduce emissions control system effectiveness, it allows exceptions under specific conditions: safeguarding the engine from damage, ensuring safe vehicle operation, meeting engine starting requirements, or when conditions are included in emissions testing procedures. AG Sharpston’s opinion focused on the exemption concerning engine protection and vehicle safety (Article 5(2)(a)), particularly since the regulation lacks clarity on the circumstances justifying a defeat device’s need.
AG Sharpston highlighted established legal precedent dictating that exemptions should be interpreted narrowly to avoid undermining general rules. She emphasized that such interpretations cannot extend beyond the cases explicitly outlined in the provision. Focusing on the terms “damage” and “accident” within Article 5(2)(a), AG Sharpston, despite their separation by “or” suggesting alternative applications, chose to combine their meaning. She argued that both terms exclusively apply to “immediate and sudden damage,” concluding that only an immediate risk jeopardizing engine reliability and posing a concrete danger while driving justifies a defeat device. She posited that measures preventing gradual damage, like wear and tear, fall outside this exemption, deeming them “ordinary and predictable” consequences of normal vehicle use, mitigable through routine maintenance.
However, this interpretation is debatable. Primarily, it overlooks the inherent distinction between “accident” and “damage.” An “accident” typically refers to an unforeseen incident resulting in harm, characterized by its suddenness. Conversely, “damage” broadly encompasses any impairment to a thing’s value or functionality, not necessarily occurring abruptly. While this distinction is evident in the English version of the regulation, it also holds true for the corresponding French (“dégât”) and German (“Beschädigung”) terms.
Although AG Sharpston acknowledged this difference in footnotes referencing French and English dictionary definitions, she neglected it in her primary analysis, using the defining characteristic of one term (“suddenness” of an “accident”) to define the other (“damage”). This contradicts the natural meaning of these terms and deviates from standard legal interpretation principles, which dictate that interpretations should not exceed the natural meaning of legal terms. Combining the meaning of two terms presented as alternatives is illogical and legally unsound.
AG Sharpston justified her interpretation by citing the regulation’s objective of reducing vehicle emissions. However, the regulation also acknowledges the importance of considering broader socio-economic factors, such as manufacturer competitiveness and business costs, which the AG overlooked.
Ultimately, it remains uncertain whether the Court of Justice of the European Union (CJEU) will adopt AG Sharpston’s interpretation. Regardless, while this case marks one of the final cases in Eleanor Sharpston’s distinguished career as Advocate General, it signals only the beginning for a series of “diesel” cases awaiting judgment by the European Court.
*The firm is involved in the litigation, but the author is not involved in client work and comments are made in a purely personal capacity
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