Opinion of Advocate General Rantos delivered on 23 September 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:758
• Date: 23 September 2021
• Celex Number: 62020CC0128
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 23 September 2021 (1)

Cases C‑128/20, C‑134/20 and C‑145/20

GSMB Invest GmbH & Co. KG

v

Auto Krainer Gesellschaft mbH

(Request for a preliminary ruling from the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria))

and

IR

v

Volkswagen AG

(Request for a preliminary ruling from the Landesgericht Eisenstadt (Regional Court, Eisenstadt, Austria))

and

DS

v

Porsche Inter Auto GmbH & Co. KG,

Volkswagen AG

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling – Approximation of laws – Regulation (EC) No 715/2007 – Motor vehicles – Article 3(10) – Article 5(1) and (2) – Diesel engines – Pollutant emissions – Software installed in the electronic engine controller – Exhaust gas recirculation valve – Reduction in nitrogen oxide emissions limited by a ‘temperature window’ – Defeat device – Authorisation of such a device where the need is justified in terms of protecting the engine against damage or accident – Device installed during the repair of the vehicle – Directive 1999/44/EC – Sale of consumer goods and associated guarantees – Goods in conformity with the contract of sale – Article 2(2)(d) – Presumption of conformity of goods which show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect – Valid EC type-approval – Article 3(6) – Purchase of the vehicle concerned even though the consumer had been aware of the presence of the defeat device at the time of the sale – Minor lack of conformity)

I. Introduction

1. As Article 11 TFEU states, ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. Increased awareness of the significance of environmental protection is reflected, inter alia, in the intention of the EU legislature to limit pollutant emissions. (2)

2. Accordingly, motor vehicles have been the subject of increasingly restrictive legislation, (3) in particular with the adoption of Regulation (EC) No 715/2007. (4) Vehicle manufacturers are obliged to adapt to new common technical requirements concerning the type-approval of such vehicles, which can be a source of dispute with the public authorities and consumers.

3. Thus, in the case which gave rise to the judgment of 17 December 2020, X (Defeat device on diesel engines)) (C‑693/18, EU:C:2020:1040, ‘the judgment in X’), the vehicle manufacturer concerned was alleged to have put into circulation vehicles equipped with software intended to distort the results of type-approval tests for emissions of gaseous pollutants, in particular NOx. (5) In that judgment, the Court interpreted, for the first time, the concept of a ‘defeat device’, within the meaning of Article 3(10) of Regulation No 715/2007, and determined the extent to which such a device is unlawful in the light of Article 5(2)(a) of that regulation, which provides for exceptions to the prohibition on defeat devices, which include the need to protect the engine against damage or accident and for safe operation of the vehicle.

4. These three cases follow in the wake of that case, in that they concern vehicles equipped with software installed in the electronic engine controller which, on the basis of certain outside temperature and driving altitude conditions, limits the reduction of NOx emissions, which results in the limit values laid down in Regulation No 715/2007 being exceeded. The questions submitted are essentially the following: is software of that type a ‘defeat device’ within the meaning of Article 3(10) of that regulation? If so, can that software be authorised on the basis of Article 5(2)(a) of the regulation? If the software is not authorised, can its use entail the cancellation of the sale by virtue of a minor lack of the vehicle’s conformity with the contract on the basis of Directive 1999/44/EC? (6)

5. In view of the connections existing between the present cases, in particular because the legal issues raised overlap to a great extent, it seemed appropriate to deliver a joint Opinion on them, even though the Court decided not to join them in view of the particular features of each case.

II. Legal context

A. EU law

1. Directive 1999/44

6. Recitals 1 and 8 of Directive 1999/44 state:

‘(1) Whereas Article 153(1) and (3) [EC] provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 95 [EC];

…

(8) Whereas, in order to facilitate the application of the principle of conformity with the contract, it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; whereas that presumption does not restrict the principle of freedom of contract; whereas, furthermore, in the absence of specific contractual terms, as well as where the minimum protection clause is applied, the elements mentioned in this presumption may be used to determine the lack of conformity of the goods with the contract; whereas the quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand; whereas the elements mentioned in the presumption are cumulative; whereas, if the circumstances of the case render any particular element manifestly inappropriate, the remaining elements of the presumption nevertheless still apply’.

7. Article 1 of that directive, which is entitled ‘Scope and definitions’, provides, in paragraph 1 thereof:

‘The purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market.’

8. Article 2 of the directive, which is entitled ‘Conformity with the contract’, provides:

‘1. The seller must deliver goods to the consumer which are in conformity with the contract of sale.

2. Consumer goods are presumed to be in conformity with the contract if they:

(a) comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model;

(b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;

(c) are fit for the purposes for which goods of the same type are normally used;

(d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.

3. There shall be deemed not to be a lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or could not reasonably be unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.

…’

9. Article 3 of the same directive, which is entitled ‘Rights of the consumer’, provides:

‘1. The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

2. In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.

3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.

A remedy shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy, are unreasonable, taking into account:

– the value the goods would have if there were no lack of conformity,

– the significance of the lack of conformity, and

– whether the alternative remedy could be completed without significant inconvenience to the consumer.

Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

…

5. The consumer may require an appropriate reduction of the price or have the contract rescinded:

– if the consumer is entitled to neither repair nor replacement, or

– if the seller has not completed the remedy within a reasonable time, or

– if the seller has not completed the remedy without significant inconvenience to the consumer.

6. The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.’

2. Regulation No 715/2007

10. Recitals 7 and 17 of Regulation No 715/2007 state:

‘(7) In setting emissions standards it is important to take into account the implications for markets and manufacturers’ competitiveness, the direct and indirect costs imposed on business and the benefits that accrue in terms of stimulating innovation, improving air quality, reducing health costs and increasing life expectancy, as well as the implications for the overall impact on carbon dioxide emissions.

…

(17) A standardised method of measuring fuel consumption and carbon dioxide emissions of vehicles is necessary to ensure that no technical barriers to trade arise between Member States. Furthermore, it is also necessary to ensure that customers and users are supplied with objective and precise...