On Thursday 23 September, the Court of Justice of the EU published the conclusions of its Advocate General Athanasios Rantos in three cases (C-128/20, C-134/20 and C-145/20) concerning the purchase of cars equipped with rigged software and marketed by Volkswagen and Porsche Inter Auto, among others.
The vehicles concerned contained software that allowed them to change their level of emission of pollutants depending on the outside temperature and the altitude at which they were driven.
The Court was asked in these cases by two Austrian regional courts as well as by the Austrian Supreme Court to clarify the nature of the software in question and whether such software could be authorised on an exceptional basis.
As regards the nature of the software, the Advocate General considers that it does constitute a “defeat device” as defined in Regulation 715/2007, since it reduces the effectiveness of the emission control system during normal vehicle use.
The Advocate General goes on to consider whether there may be exceptions in the regulation that could justify the use of such devices, for example, to protect the vehicle’s engine from damage or an accident.
On this point, the lawyer points out that the regulation makes a distinction between the engine on the one hand and the pollution control system on the other. The protection of the engine, he explains, may justify the exceptional use of ‘defeat devices’.
The pollution control system, on the other hand, cannot be affected by any exception as its operation does not affect the protection of the engine.
For the Advocate General, the installation of such software is therefore contrary to EU law and a vehicle that does not comply with the requirements of EU law, “in particular those relating to defeat devices”, does not have “an accurate certificate of conformity issued by the manufacturer”, he says.
The sale or registration of such a vehicle should therefore not be allowed.
He states that, “in the absence of an accurate certificate of conformity, the vehicle concerned does not comply ‘with the description given by the seller’, is not ‘fit for any particular purpose for which the consumer requires [it]’ and is not ‘fit for the purposes for which goods of the same type are normally used’”.
Furthermore, the Advocate General considers that the presence of a prohibited defeat device in a vehicle cannot be considered as a “minor” lack of conformity, even if the consumer had made the choice to buy the vehicle with full knowledge of the facts.
He therefore concludes that, in these circumstances, the consumer “is not denied the right” to seek rescission of the contract of sale.
This position was welcomed by the Chair of the European Parliament’s Committee on Transport, Karima Delli (Greens/EFA, France), who, on Thursday, hailed it as “good news for the environment and for citizens”.
For the conclusions: https://bit.ly/2XWNpFL (Original version in French by Agathe Cherki)