December 02
2021
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Dolores Utrilla
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23rd September 2021
Consumer, Health & Environment Data, Tech & IP Energy & Transport Internal Market

AG Rantos: motor vehicles equipped with software limiting the reduction of NOx emissions are contrary to EU law and purchasers can seek rescission of contracts

Advocate General (AG) Rantos has delivered his Opinion in the Grand Chamber cases GSMB Invest (C-128/20), Volkswagen (C-134/20) and Porsche Inter Auto and Volkswagen (C-145/20), concerning three requests for a preliminary ruling from Austrian courts on whether EU law (in particular, the Consumer Sales Directive and Regulation 715/2007 on type approval of motor vehicles) prevents the sale of motor vehicles equipped with software which, on the basis of certain temperature and driving altitude conditions, limits the reduction of nitrogen oxide (NOx) emissions.

The referring courts had asked to the Court of Justice, in essence, whether such software constitutes a ‘defeat device’ within the meaning of Regulation 715/2007 and, in the affirmative, whether that software may be permitted on the basis of the exceptions to the prohibition on defeat devices, as provided for in that Regulation.

In his Opinion today, AG Rantos notes that in order to determine whether the software at issue constitutes a ‘defeat device’ it is necessary to examine its operation during the ‘normal use’ of the vehicles concerned which, in his view, refers not to the conditions provided for in the New European Driving Cycle (NEDC) but rather to real driving conditions. According to AG Rantos, this proves that the software at issue reduces the effectiveness of the emission control system in normal vehicle operation and use, and that therefore it constitutes a ‘defeat device’ within the meaning of Regulation 715/2007.

Moreover, AG Rantos concludes that this kind of device is not covered by any of the exceptions to the prohibition of defeat devices, because it serves to protect the functioning of the exhaust gas recirculation (EGR) system and not the engine, as required by the exceptions contained in Regulation 715/2007.

As a consequence of this, AG Rantos maintains that vehicles equipped with this kind of devices cannot be sold or registered. This means that the vehicle concerned is not in conformity with the contract of sale within the meaning of the Consumer Sales Directive, even in the absence of specific contractual terms. Therefore, the consumer is not denied the right to seek rescission of the contract under that Directive.

The Opinion is available here.

An Analysis on these cases by Felix Beck will be published soon on EU Law Live.

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