Is Article 2(2)(d) of Directive 1999/44 to be interpreted as meaning that a motor vehicle that falls within the scope of Regulation No 715/2007 shows the quality which is normal in goods of the same type and which the consumer can reasonably expect if the vehicle is equipped with a prohibited defeat device within the meaning of point 10 of Article 3 and Article 5(2) of Regulation No 715/2007 but the vehicle type nevertheless has a valid EC type-approval, meaning that the vehicle can be used on the road?

A vehicle with a prohibited defeat device does not meet the quality expected by consumers even with a valid EC type-approval.

Is Article 5(2)(a) of Regulation No 715/2007 to be interpreted as meaning that a defeat device within the meaning of point 10 of Article 3 of that regulation, which is designed in such a way that the exhaust gas recirculation is fully operational outside of test operation under laboratory conditions and during real-world driving only if outside temperatures are [in the temperature window], may be permissible pursuant to Article 5(2)(a) of that regulation, or is the application of the aforementioned exemption provision excluded from the outset for the simple reason that the full effectiveness of the exhaust gas recirculation is restricted to conditions that exist for only around half of the year in parts of the European Union?

Such a defeat device is not justified unless it strictly avoids immediate engine risks causing specific hazards during driving.

Is Article 3(6) of Directive 1999/44 to be interpreted as meaning that a lack of conformity consisting in the equipping of a vehicle with a defeat device that is prohibited under point 10 of Article 3 in conjunction with Article 5(2) of Regulation No 715/2007 must be regarded as minor within the meaning of the aforementioned provision if the purchaser acquired the vehicle even though he [or she] was aware of the presence and operation of that device?

A lack of conformity due to a prohibited defeat device is not minor even if the consumer would still have purchased the vehicle.

Prohibited defeat devices in vehicles violate consumer expectations and are not justified or minor.

European Court of Justice · Judgment · Preliminary ruling

(Reference for a preliminary ruling – Approximation of laws – Regulation (EC) No 715/2007 – Approval of motor vehicles – Article 5(2) – Defeat device – Motor vehicles – Diesel engines – Emission control system – Software installed in the electronic engine controller – Exhaust gas recirculation valve (‘EGR valve’) – Reduction in nitrogen oxide (NOx) emissions limited by a ‘temperature window’ – Prohibition on the use of defeat devices that reduce the effectiveness of emission control systems – Article 5(2)(a) – Exception to that prohibition – Consumer protection – Directive 1999/44/EC – Sale of consumer goods and associated guarantees – Article 2(2)(d) – Concept of ‘goods which show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods’ – Vehicle covered by an EC type-approval – Article 3(6) – Concept of a ‘minor lack of conformity’)

Rechtsvraag

The primary legal issue is whether a motor vehicle, which falls under the scope of Regulation (EC) No 715/2007 and is equipped with a defeat device prohibited by Article 5(2) of the Regulation, can be considered to have the normal quality and performance expected by consumers under Article 2(2)(d) of Directive 1999/44/EC, and if such a vehicle should be presumed to conform with the sales contract. Additionally, whether a defeat device that operates under a temperature window can be justified under the exception in Article 5(2)(a) of the Regulation, and whether the presence of such a device constitutes a 'minor' lack of conformity under Article 3(6) of Directive 1999/44/EC.

Regel

Article 5(2), Regulation (EC) No 715/2007 (Prohibition on the use of defeat devices that reduce the effectiveness of emission control systems)
Article 5(2)(a), Regulation (EC) No 715/2007 (Exception to the prohibition on defeat devices if necessary for protecting the engine against damage or accident and for safe operation)
Article 2(2)(d), Directive 1999/44/EC (Consumer goods are presumed to be in conformity if they show quality and performance which are normal in goods of the same type and which the consumer can reasonably expect)
Article 3(6), Directive 1999/44/EC (A minor lack of conformity does not entitle the consumer to rescind the contract)

Conclusie

The court concluded that a vehicle equipped with a prohibited defeat device under Article 5(2) of Regulation No 715/2007 does not exhibit the quality and performance that a consumer can reasonably expect, as per Article 2(2)(d) of Directive 1999/44/EC. The exception under Article 5(2)(a) does not apply as the defeat device does not strictly meet the need to avoid immediate engine damage or accident. Furthermore, the presence of such a device is not a minor lack of conformity, even if the consumer would have purchased the vehicle with knowledge of the device.

Tijdlijn

20-06-2007 Adoption of Regulation (EC) No 715/2007 on type approval of motor vehicles with respect to emissions.
25-05-1999 Adoption of Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees.
21-12-2013 DS, a consumer, purchased a Volkswagen motor vehicle with a Euro 5 generation EA 189 type diesel engine.
15-10-2015 Kraftfahrt-Bundesamt (KBA) ordered Volkswagen to withdraw the switch system in order to re-establish conformity with Regulation No 715/2007.
20-12-2016 KBA informed Volkswagen that the proposed software update was suitable for re-establishing conformity of the Euro 5 generation EA 189 engines.
15-02-2017 DS had the software update carried out on the vehicle, replacing the switch system with a new program.
12-12-2018 The Landesgericht Linz (Regional Court, Linz, Austria) dismissed DS's action for reimbursement of the vehicle purchase price.
04-04-2019 The Oberlandesgericht Linz (Higher Regional Court, Linz, Austria) upheld the judgment dismissing DS's action.
17-03-2020 The Oberster Gerichtshof (Supreme Court, Austria) referred questions to the Court of Justice of the European Union for a preliminary ruling.
24-03-2020 The Court of Justice of the European Union received the request for a preliminary ruling from the Oberster Gerichtshof.
23-09-2021 Advocate General delivered an opinion on the case at a sitting.
14-07-2022 The Court of Justice of the European Union delivered its judgment in the case C‑145/20.