In an opinion delivered on Thursday, 2 June, Advocate General Athanasios Rantos of the Court of Justice of the European Union considered that the purchaser of a diesel vehicle equipped with an unlawful defeat device must have a right to compensation from the vehicle manufacturer (Case C-100/21).
The purchaser of a used Mercedes C220 CDI—whose exhaust gas recirculation system establishes a ‘temperature window’—brought an action for damages against Mercedes-Benz before the German court. When outside temperatures are colder, this ‘temperature window’ causes a reduction in the exhaust gas recirculation rate, which increases nitrogen oxide (NOx) emissions as a result.
The German court—which considers this ‘temperature window’ to be an unlawful defeat device within the meaning of the regulation (715/2007) on type approval of motor vehicles (see EUROPE 12625/29)—is asking the Court of Justice whether the purchaser is entitled to compensation on the basis of the tortious liability of the manufacturer, even in the case of simple negligence on the part of the latter.
In his opinion, the advocate general suggests the court answer in the affirmative. According to him, the regulation (715/2007) protects the interests of an individual purchaser of a motor vehicle, in particular that of not acquiring a vehicle when it is equipped with an unlawful defeat device. In fact, through the EC certificate of conformity, the manufacturer assures the purchaser that the acquired vehicle complies with the requirements of EU law.
According to Mr Rantos, Member States thus have an obligation to ensure that the purchaser of a vehicle is entitled to compensation in such a situation by implementing effective, proportionate, and dissuasive penalties. They must also define the rules on how that compensation is to be calculated.
It is then up to the German court to ascertain to what extent offsetting the benefit of the actual use made of the vehicle against the reimbursement of its purchase price would ensure adequate compensation for the purchaser. Nevertheless, the advocate general adds that the Court of Justice is not required to decide whether the benefit of the use made of the vehicle must be calculated based on its full purchase price without any deductions being made for the reduction in value resulting from use of a vehicle that does not comply with EU law.
See the opinion: https://aeur.eu/f/1y5 (Original version in French by Mathieu Bion)