The Court of Justice of the European Union (CJEU) ruled, on Thursday 14 July, (cases C-128/20, C-134/20 and C-145/20) that the software updated by Volkswagen on its diesel vehicles to bring them into line with EU legislation also constitutes a defeat device prohibited by EU law.
Buyers of vehicles from the German manufacturer Volkswagen had applied to the Austrian courts to have their sales contracts concluded between 2011 and 2013 annulled.
The reason: the vehicles were equipped with software that reduced the recycling of pollutant gases from the vehicle depending on the temperature detected. The software only allowed European standards to be met when the outside temperature was between 15 and 33 degrees Celsius.
This device was introduced by Volkswagen to replace software prohibited by EU law. It had been authorised by the German Federal Office for Motor Traffic, which concluded that the update did not constitute a defeat device. However, two Austrian regional courts had referred to the CJEU the question of the lawfulness of such a device.
The Court ruled that the device is a prohibited defeat device under the Regulation on the type approval of motor vehicles with regard to emissions (Regulation 715/2007, Article 5(2)). The updated software does not allow normal operation of the vehicle under normal conditions in the EU.
The device could be lawful only if it protects against a concrete danger when driving the vehicle and no other technical solution exists to avoid such a risk. In this case, it is up to the national courts to verify whether this is the case, the Court said.
However, it introduces an unbreakable limit: the device would be prohibited in any case if it were to operate during “most of the year”, otherwise the exception would threaten to become the rule, which would be a “disproportionate” attack on the very principle of limiting nitrogen oxide emissions.
As a result, the CJEU ruled that the annulment of the vehicle sale contract “cannot be excluded” since the purchasers of the vehicles in question had bought a product that did not comply with the said contract under Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees.
To consult the judgment: https://aeur.eu/f/2n1 (Original version in French by Pascal Hansens)