Software in diesel vehicles which reduces the effectiveness of the emission control system at normal temperatures during most of the year constitutes a prohibited defeat device
Since such a vehicle default is not minor, rescission of the sale contract in respect of the vehicle is not, in
principle, precluded
Purchasers of Volkswagen vehicles fitted with software that reduces the recirculation of a vehicle’s pollutant gases
according to, among other things, the temperature detected are requesting that the Austrian courts annul sales
contracts they concluded between 2011 and 2013.
According to the information provided by those courts, that software ensures compliance with the limits laid down
at EU level for emissions of nitrogen oxide (NOx) only when the outside temperature is between 15 and 33 °C (‘the
temperature window’). Outside of that window, the rate of exhaust gas recirculation (EGR) reduces in a linear way
down to zero, which leads to those limits being exceeded.
That temperature window results from a software update in the vehicles at issue carried out by Volkswagen with a
view to replacing software prohibited under EU law. The German Federal Office for Motor Vehicles had authorised
that update, having concluded that it did not constitute a prohibited defeat device.
The Austrian Supreme Court, the Regional Court, Eisenstadt, and the Regional Court, Klagenfurt, referred a number
of questions to the Court concerning the lawfulness of such a temperature window and the rights available to
purchasers, in so far as they are consumers, under the EU law in force at the time of the facts in the case.
By today’s judgments, the Court finds that a device which ensures compliance with the NOx emission limits
only in the temperature window does in principle constitute a defeat device prohibited under Article 5(2) of
Regulation No 715/2007. 1
The Court points out, in that regard, first, that ambient temperatures below 15 °C are to be considered as normal
within the territory of the European Union. Second, emission limits laid down at EU level must be observed even
where those temperatures are significantly below 15 °C. Accordingly, software such as that at issue reduces the
effectiveness of the emission control system under conditions of normal use.
For that reason, the mere fact that that device contributes to protecting separate engine parts such as the EGR valve, the EGR cooler and the diesel particulate filter does not make it lawful
That may not be the case if it were established that that device strictly meets the need to avoid immediate
risks of damage or accident to the engine, caused by a malfunction of one of those parts, of such a serious
nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. Such a ‘need’ exists
only where, at the time of the EC type-approval of that device or the vehicle equipped with it, no other technical
solution makes it possible to avoid such risks. It is for the referring courts to verify whether that is the case for
the defeat device with which the vehicles in question are equipped. Nevertheless, the Court notes, in that
context, that the sole aim of protecting the engine against clogging up and ageing does not justify the installation of
a defeat device. 2
In any event, even if there were such a need as the one outlined above, the defeat device is prohibited if, under
normal driving conditions, it operates during most of the year. Indeed, accepting such a device may lead to the
exception being applied more often than the prohibition and would therefore result in a disproportionate
infringement of the principle of limiting NOx emissions.
Further, the Court states that the fact that a defeat device was installed after a vehicle was put into service is
irrelevant for the purposes of assessing whether the use of that device is prohibited.
As regards the rights of consumers where they have purchased goods that are not inconformity with the
sale contract, the relevant EU rules applicable at the time of the facts, namely Directive 1999/44, 3 provided that the
consumer may require the seller to repair the goods or to replace them, unless this is impossible or
disproportionate. It is only if the consumer is entitled to neither repair nor replacement or if the seller has failed to
complete one of those remedies within a reasonable time or without significant inconvenience to the consumer that
the consumer may require an adequate reduction of the price or the rescission of the contract. However, rescission
is precluded if the goods’ lack of conformity is minor.
In that regard, the Court finds that a vehicle does not show the quality which is normal in goods of the same
type and which the consumer can reasonably expect, and therefore is not in conformity with the contract,
where, although it is covered by a valid EC type-approval and may, consequently, be used on the road, that
vehicle is fitted with a prohibited defeat device.
Furthermore, such a lack of conformity cannot be classified as ‘minor’, even if, assuming that the consumer was
aware of the existence and operation of that device, that consumer would nevertheless still have purchased that
vehicle. Consequently, rescission of that contract is not, in principle, precluded.
