Porsche Inter Auto and Volkswagen (Approximation of laws - Approval of motor vehicles - Defeat device - 'EGR valve' - Judgment) [2022] EUECJ C-145/20 (14 July 2022)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Porsche Inter Auto and Volkswagen (Approximation of laws - Approval of motor vehicles - Defeat device - 'EGR valve' - Judgment) [2022] EUECJ C-145/20 (14 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C14520.html Cite as: EU:C:2022:572, [2022] 4 WLR 91, ECLI:EU:C:2022:572, [2022] EUECJ C-145/20, [2022] WLR(D) 318, [2023] 1 CMLR 12

(Reference for a preliminary ruling – Approximation of laws – Regulation (EC) No 715/2007 – Approval of motor vehicles – Article 5(2) – Defeat device – Motor vehicles – Diesel engines – Emission control system – Software installed in the electronic engine controller – Exhaust gas recirculation valve (‘EGR valve’) – Reduction in nitrogen oxide (NOx) emissions limited by a ‘temperature window’ – Prohibition on the use of defeat devices that reduce the effectiveness of emission control systems – Article 5(2)(a) – Exception to that prohibition – Consumer protection – Directive 1999/44/EC – Sale of consumer goods and associated guarantees – Article 2(2)(d) – Concept of ‘goods which 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’ – Vehicle covered by an EC type-approval – Article 3(6) – Concept of a ‘minor lack of conformity’)

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 17 March 2020, received at the Court on 24 March 2020, in the proceedings

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, K. Jürimäe, C. Lycourgos and I. Ziemele, Presidents of Chambers, M. Ilešič, J.-C. Bonichot, F. Biltgen, P.G. Xuereb (Rapporteur), N. Piçarra and N. Wahl, Judges,

– Porsche Inter Auto GmbH & Co. KG and Volkswagen AG, by H. Gärtner, F. Gebert, F. Gonsior, C. Harms, N. Hellermann, F. Kroll, M. Lerbinger, S. Lutz-Bachmann, L.‑K. Mannefeld, K.‑U. Opper, H. Posser, J. Quecke, K. Schramm, W.F. Spieth, J. von Nordheim, K. Vorbeck, B. Wolfers and B. Wollenschläger, Rechtsanwälte,

– the European Commission, by M. Huttunen, M. Noll-Ehlers and N. Ruiz García, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 September 2021,

1 This request for a preliminary ruling concerns the interpretation of Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1) and of Article 2(2)(d) and Article 3(6) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).

2 The request has been made in proceedings between DS, on the one hand, and Porsche Inter Auto GmbH & Co. KG and Volkswagen AG, on the other, concerning an application for annulment of a sales contract for a motor vehicle with software reducing the recirculation of the vehicle’s pollutant gases according, inter alia, to the temperature detected.

3 Directive 1999/44 was repealed by Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28), with effect from 1 January 2022. Nevertheless, in view of the date of the dispute in the main proceedings, Directive 1999/44 remains applicable to that dispute.

‘(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];

(10) Whereas, in the case of non-conformity of the goods with the contract, consumers should be entitled to have the goods restored to conformity with the contract free of charge, choosing either repair or replacement, or, failing this, to have the price reduced or the contract rescinded;

(11) Whereas the consumer in the first place may require the seller to repair the goods or to replace them unless those remedies are impossible or disproportionate; whereas whether a remedy is disproportionate should be determined objectively; whereas a remedy would be disproportionate if it imposed, in comparison with the other remedy, unreasonable costs; whereas, in order to determine whether the costs are unreasonable, the costs of one remedy should be significantly higher than the costs of the other remedy;

(12) Whereas in cases of a lack of conformity, the seller may always offer the consumer, by way of settlement, any available remedy; whereas it is for the consumer to decide whether to accept or reject this proposal’.

(f) “repair”: shall mean, in the event of lack of conformity, bringing consumer goods into conformity with the contract of sale.’

6 Article 2 of that directive, entitled ‘Conformity with the contract’, provided in paragraphs 1 to 3 thereof:

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

(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;

(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.’

7 Article 3 of the directive, entitled ‘Rights of the consumer’, read as follows:

‘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:

– 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.

4. The terms “free of charge” in paragraphs 2 and 3 refer to the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labour and materials.

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

– 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.’

‘(1) … The technical requirements for the type approval of motor vehicles with regard to emissions should … be harmonised to avoid requirements that differ from one Member State to another, and to ensure a high level of environmental protection.

(4) … further reductions in emissions from the transport sector (air, maritime and land transport), from households and from the energy, agricultural and industrial sectors are needed to achieve EU air quality objectives. In this context, the task of reducing vehicle emissions should be approached as part of an overall strategy. The Euro 5 and 6 standards are one of the measures designed to reduce emissions of particulate matter and ozone precursors such as nitrogen oxides and hydrocarbons.

(5) Achieving EU air quality objectives requires a continuing effort to reduce vehicle emissions. …

(6) In particular, a considerable reduction in nitrogen oxide emissions from diesel vehicles is necessary to improve air quality and comply with limit values for pollution. …

(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.’

‘This Regulation establishes common technical requirements for the type approval of motor vehicles (vehicles) and replacement parts, such as replacement pollution control devices, with regard to their emissions.’

‘For the purposes of this Regulation and its implementing measures the following definitions shall apply:

(10) “defeat device” means any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use’.

‘1. Manufacturers shall demonstrate that all new vehicles sold, registered or put into service in the Community are type approved in accordance with this Regulation and its implementing measures. Manufacturers shall also demonstrate that all new replacement pollution control devices requiring type approval which are sold or put into service in the Community are type approved in accordance with this Regulation and its implementing measures.

These obligations include meeting the emission limits set out in Annex I and the implementing measures referred to in Article 5.

2. Manufacturers shall ensure that type approval procedures for verifying conformity of production, durability of pollution control devices and in-service conformity are met.

In addition, the technical measures taken by the manufacturer must be such as to ensure that the tailpipe and evaporative emissions are effectively limited, pursuant to this Regulation, throughout the normal life of the vehicles under normal conditions of use. …

‘1. The manufacturer shall equip vehicles so that the components likely to affect emissions are designed, constructed and assembled so as to enable the vehicle, in normal use, to comply with this Regulation and its implementing measures.

2. The use of defeat devices that reduce the effectiveness of emission control systems shall be prohibited. The prohibition shall not apply where:

(a) the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle;

(c) the conditions are substantially included in the test procedures for verifying evaporative emissions and average tailpipe emissions.’

13 Annex I to that regulation, entitled ‘Emission limits’, lays down, inter alia, nitrogen oxide (NOx) emission limit values.

14 Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and amending Regulation No 715/2007 (OJ 2008 L 199, p. 1), was amended by Commission Regulation (EU) No 566/2011 of 8 June 2011 (OJ 2011 L 158, p. 1) (‘Regulation No 692/2008’). From 1 January 2022, Regulation No 692/2008 has been repealed by Commission Regulation (EU) 2017/1151 of 1 June 2017 supplementing Regulation No 715/2007, amending Directive 2007/46/EC of the European Parliament and of the Council, Regulation No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Regulation No 692/2008 (OJ 2017 L 175, p. 1). However, in view of the date of the facts of the dispute in the main proceedings, Regulation No 692/2008 remains applicable to that dispute.

15 Article 10 of Regulation No 692/2008, entitled ‘Pollution control devices’, provided in paragraph 1:

‘The manufacturer shall ensure that replacement pollution control devices intended to be fitted to EC type-approved vehicles covered by the scope of Regulation (EC) No 715/2007 are EC type-approved, as separate technical units within the meaning of Article 10(2) of Directive 2007/46/EC [of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1)], in accordance with Article 12, Article 13 and Annex XIII to this Regulation.

Catalytic converters and particulate filters shall be considered to be pollution control devices for the purposes of this Regulation.

16 Annex I to Regulation No 692/2008, entitled ‘Administrative provisions for EC type-approval’, stated, in point 3.3 thereof, entitled ‘Extensions for durability of pollution control devices (type 5 test)’:

‘The type-approval shall be extended to different vehicle types, provided that the vehicle, engine or pollution control system parameters specified below are identical or remain within the prescribed tolerances:

type (cooled or non-cooled, active or passive control, high pressure or low pressure).

17 Directive 2007/46, as amended by Commission Regulation (EU) No 1229/2012 of 10 December 2012 (OJ 2012 L 353, p. 1) (‘Directive 2007/46’), was repealed by Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC (OJ 2018 L 151, p. 1), with effect from 1 September 2020. However, in view of the date of the facts of the dispute in the main proceedings, that directive remains applicable to that dispute.

‘The technical requirements applicable to systems, components, separate technical units and vehicles should be harmonised and specified in regulatory acts. Those regulatory acts should primarily seek to ensure a high level of road safety, health protection, environmental protection, energy efficiency and protection against unauthorised use.’

‘This Directive establishes a harmonised framework containing the administrative provisions and general technical requirements for approval of all new vehicles within its scope and of the systems, components and separate technical units intended for those vehicles, with a view to facilitating their registration, sale and entry into service within the Community.

Specific technical requirements concerning the construction and functioning of vehicles shall be laid down in application of this Directive in regulatory acts, the exhaustive list of which is set out in Annex IV.’

20 Article 3 of Directive 2007/46, entitled ‘Definitions’, provided, in paragraphs 5 and 36 thereof:

‘For the purposes of this Directive and of the regulatory acts listed in Annex IV, save as otherwise provided therein:

5. “EC type-approval” means the procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI;

36. “certificate of conformity” means the document set out in Annex IX, issued by the manufacturer and certifying that a vehicle belonging to the series of the type approved in accordance with this Directive complied with all regulatory acts at the time of its production’.

21 Article 4 of that directive, entitled ‘Obligations of Member States’, provided:

‘1. Member States shall ensure that manufacturers applying for approval comply with their obligations under this Directive.

2. Member States shall approve only such vehicles, systems, components or separate technical units as satisfy the requirements of this Directive.

3. Member States shall register or permit the sale or entry into service only of such vehicles, components and separate technical units as satisfy the requirements of this Directive.

‘The approval authority shall inform without delay the approval authorities of the other Member States of its refusal or withdrawal of any vehicle approval, together with the reasons for its decision.’

‘The manufacturer shall inform without delay the Member State that granted the EC type-approval of any change in the particulars recorded in the information package. That Member State shall decide, in accordance with the rules laid down in this Chapter, which procedure is to be followed. Where necessary, the Member State may decide, in consultation with the manufacturer, that a new EC type-approval is to be granted’.

24 Article 18 of Directive 2007/46, entitled ‘Certificate of conformity’, stated, in paragraph 1 thereof:

‘The manufacturer, in his capacity as the holder of an EC type-approval of a vehicle, shall deliver a certificate of conformity to accompany each vehicle, whether complete, incomplete or completed, that is manufactured in conformity with the approved vehicle type.

25 Article 26 of that directive, entitled ‘Registration, sale and entry into service of vehicles’, provided, in paragraph 1 thereof:

‘Without prejudice to the provisions of Articles 29 and 30, Member States shall register, and permit the sale or entry into service of, vehicles only if they are accompanied by a valid certificate of conformity issued in accordance with Article 18.

26 Annex IV to that directive, entitled ‘Requirements for the purpose of EC type-approval of vehicles’, referred, in Part I thereof, entitled ‘Regulatory acts for EC type-approval of vehicles produced in unlimited series’, to Regulation No 715/2007 in relation to ‘emissions (Euro 5 and 6) light duty vehicles/access to information’.

27 Paragraph 922(1) of the Allgemeines bürgerliches Gesetzbuch (Austrian Civil Code), in the version applicable to the main proceedings (‘the ABGB’), provides:

‘A person who transfers an item to another person for consideration shall warrant that the item is in conformity with the contract. He shall therefore be liable for the fact that the item has the agreed or customarily expected characteristics, that it corresponds to its description, a sample or a model, and that it is fit for the purpose specified or for the purpose corresponding to the nature of the legal act.’

‘(1) The transferee may demand an improvement (repair or addition of what is defective or missing), exchange of the item, a reasonable reduction in the consideration (price reduction) or termination of the contract (rescission) on the grounds of a defect.

(4) If both improvement and exchange are impossible or would be disproportionately burdensome for the transferor, the transferee shall be entitled to a price reduction or, other than in the case of a minor defect, to rescission of the contract. …’

29 Pursuant to Paragraph 25(2) of the Verordnung über die EG-Genehmigung für Kraftfahrzeuge und ihre Anhänger sowie für Systeme, Bauteile und selbstständige technische Einheiten für diese Fahrzeuge (EG-Fahrzeuggenehmigungsverordnung) (Regulation on EC type-approval for motor vehicles and their trailers, and for systems, components and separate technical units intended for such vehicles (EC Motor Vehicle Type-Approval Regulation)) (‘the EG-FGV’):

‘The Kraftfahrt-Bundesamt may also retroactively impose ancillary provisions in order to remedy any defects that have been identified and to ensure the conformity of vehicles, separate technical units or components that are already on the market.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

30 On 21 December 2013, DS, a consumer, purchased a Volkswagen motor vehicle with a Euro 5 generation EA 189 type diesel engine from Porsche Inter Auto, an independent authorised Volkswagen dealer.

31 That vehicle contained software which operated the exhaust gas recirculation (EGR) system in two modes (‘the switch system’). The first mode was activated only during the approval test, called the ‘New European Driving Cycle’ (NEDC), which is carried out in a laboratory. In that mode, the EGR rate was higher than in the second mode, which was activated under normal driving conditions. EC type-approval was granted for the vehicle type at issue by the Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles, Germany; ‘the KBA’), the competent authority responsible for type-approval in Germany. The presence of the switch system had not been disclosed to that authority.

32 It is apparent from the order for reference that, if the KBA had been aware of that system, it would not have granted EC type-approval to that type of vehicle. It is also apparent that DS would have purchased the vehicle in question even if he had been aware of that system.

33 By decision of 15 October 2015, adopted on the basis of Paragraph 25(2) of the EG-FGV, the KBA ordered Volkswagen to withdraw the switch system in order to re-establish conformity of Euro 5 generation EA 189 engines with Regulation No 715/2007. By letter of 20 December 2016, the KBA informed Volkswagen that the proposed software update referred to in paragraph 31 above (‘the software update’) was suitable for re-establishing that conformity. Subsequently, the EC type-approval for the vehicle type at issue was not withdrawn or revoked by the KBA.

34 On 15 February 2017, DS had the software update carried out on the vehicle. That update replaced the switch system with a programme under which the emission-reducing mode was activated not only during the approval test referred to in paragraph 31 above, but also when the vehicle was used on a road. However, the EGR was fully effective only when the external temperature was between 15 and 33 °C (‘the temperature window’).

35 DS brought an action before the Landesgericht Linz (Regional Court, Linz, Austria) seeking, principally, the reimbursement of the purchase price of the vehicle at issue against return of that vehicle or, in the alternative, a reduction in the price of the vehicle or, in the further alternative, a declaration that Porsche Inter Auto and Volkswagen are liable for damages as a result of the presence of a prohibited defeat device within the meaning of Article 5(2) of Regulation No 715/2007.

37 By judgment of 4 April 2019, the Oberlandesgericht Linz (Higher Regional Court, Linz, Austria) upheld that judgment.

38 DS brought an appeal on a point of law (‘Revision’) against that judgment before the Oberster Gerichtshof (Supreme Court, Austria), the referring court, on the ground that the vehicle at issue was defective because the switch system constituted a prohibited defeat device, within the meaning of Article 5(2) of Regulation No 715/2007. According to DS, since the software update had not remedied that defect, there was a risk that the vehicle would decrease in value and be damaged as a result of that update.

39 Porsche Inter Auto and Volkswagen submit that the temperature window constitutes a permissible defeat device under Article 5(2) of Regulation No 715/2007. The KBA agrees with that assessment.

40 The referring court considers that the switch system is a prohibited defeat device within the meaning of Article 3(10) and Article 5(2) of Regulation No 715/2007. In any case, the vehicle at issue has a defect, for the purposes of Paragraph 922 of the ABGB, because the presence of that defeat device had not been disclosed to the KBA.

41 In that context, the referring court asks whether, in view of the obligation to deliver a vehicle without such a defeat device, the vehicle at issue lacked conformity for the purposes of Directive 1999/44. If that were the case, it would be necessary, in its view, to examine whether that vehicle was still equipped with a prohibited defeat device following the update of the software operating the EGR system and to specify what the legal effects would be if such a defect had persisted after the software update.

42 More specifically, the referring court asks, first, whether, in the event that the vehicle at issue is covered by an EC type-approval even though that vehicle is equipped with a defeat device, the use of which is prohibited under point 10 of Article 3 and under Article 5(2) of Regulation No 715/2007, that vehicle shows the quality which is normal in goods of the same type and which the consumer can reasonably expect, within the meaning of Article 2(2)(d) of Directive 1999/44, and should therefore be presumed to be in conformity with the contract. In that regard, that court takes the view that, in the case of a product, such as a vehicle, which must meet regulatory requirements, the average consumer who is reasonably well informed and reasonably observant and circumspect, does in fact expect those requirements to be met. The fact that vehicles must undergo an EC type-approval process does not necessarily preclude Article 2(2)(d) of Directive 1999/44 from being interpreted thus.

43 In the second place, the referring court asks whether the temperature window may fall within the scope of the exception laid down in Article 5(2)(a) of Regulation No 715/2007 relied on by Porsche Inter Auto and Volkswagen, or whether that is excluded from the outset, in line with the view taken by DS. In that regard, the referring court states that, in view of the objective of environmental protection resulting from recitals 1 and 6 of Regulation No 715/2007, the exceptions laid down in Article 5(2) must be interpreted strictly. According to that court, since it is well known that, in part of the territory of the European Union, including Austria, average temperatures are below 15 °C for several months of the year, the external temperature at which the EGR of a vehicle such as that at issue in the main proceedings is fully effective is thus not attained, on average, for a large part of the year. In those circumstances, it appears impossible to justify a defeat device which operates so frequently on the basis of one of those exceptions.

44 In the third place, the referring court asks whether the presence, in a vehicle, of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, the use of which is prohibited under Article 5(2) of that regulation, may be classified as a minor lack of conformity within the meaning of Article 3(6) of Directive 1999/44, where, even if he had been aware of the existence and operation of that device, the consumer concerned would still have purchased that vehicle.

45 In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 2(2)(d) of Directive [1999/44] to be interpreted as meaning that a motor vehicle that falls within the scope of Regulation [No 715/2007] shows the quality which is normal in goods of the same type and which the consumer can reasonably expect if the vehicle is equipped with a prohibited defeat device within the meaning of point 10 of Article 3 and Article 5(2) of Regulation [No 715/2007] but the vehicle type nevertheless has a valid EC type-approval, meaning that the vehicle can be used on the road?

(2) Is Article 5(2)(a) of Regulation [No 715/2007] to be interpreted as meaning that a defeat device within the meaning of point 10 of Article 3 of that regulation, which is designed in such a way that the exhaust gas recirculation is fully operational outside of test operation under laboratory conditions and during real-world driving only if outside temperatures are [in the temperature window], may be permissible pursuant to Article 5(2)(a) of that regulation, or is the application of the aforementioned exemption provision excluded from the outset for the simple reason that the full effectiveness of the exhaust gas recirculation is restricted to conditions that exist for only around half of the year in parts of the European Union?

(3) Is Article 3(6) of Directive [1999/44] to be interpreted as meaning that a lack of conformity consisting in the equipping of a vehicle with a defeat device that is prohibited under point 10 of Article 3 in conjunction with Article 5(2) of Regulation [No 715/2007] must be regarded as minor within the meaning of the aforementioned provision if the purchaser acquired the vehicle even though he [or she] was aware of the presence and operation of that device?’

46 By its first question, the referring court asks, in essence, whether Article 2(2)(d) of Directive 1999/44 must be interpreted as meaning that a motor vehicle falling within the scope of Regulation No 715/2007 shows the quality which is normal in goods of the same type and which the consumer can reasonably expect, and must therefore be presumed to be in conformity with the relevant contract of sale, 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 defeat device the use of which is prohibited under Article 5(2) of that regulation.

47 Article 2(1) of Directive 1999/44 obliges the seller to deliver goods to the consumer which are in conformity with the contract of sale.

48 Under Article 2(2)(d) of that directive, consumer goods are presumed to be in conformity with the contract if they 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.

49 As regards goods such as that at issue in the main proceedings, namely a motor vehicle, it should be noted that Article 3(5) of Directive 2007/46 defines ‘EC type-approval’ as the ‘procedure whereby a Member State certifies that a type of vehicle, system, component or separate technical unit satisfies the relevant administrative provisions and technical requirements of this Directive and of the regulatory acts listed in Annex IV or XI’. That Annex IV, which is entitled ‘Requirements for the purpose of EC type-approval of vehicles’, refers, in Part I thereof, which is entitled ‘Regulatory acts for EC type-approval of vehicles produced in unlimited series’, to Regulation No 715/2007 in connection with ‘emissions (Euro 5 and 6) light duty vehicles/access to information’.

50 It should also be noted that the first subparagraph of Article 4(3) of that directive states that Member States are to register or permit the sale or entry into service only of such vehicles as satisfy the requirements of the same directive.

51 Lastly, Article 4(1) of Regulation No 715/2007 provides that manufacturers are to demonstrate that all new vehicles sold, registered or put into service in the European Union are type approved in accordance with that regulation and its implementing measures.

52 It follows from the provisions referred to in paragraphs 49 to 51 above, first, that vehicles falling within the scope of Directive 2007/46 are to be type-approved and, secondly, that such type-approval may be granted only if the type of vehicle in question satisfies the provisions of Regulation No 715/2007, in particular those relating to emissions, which includes Article 5 thereof.

53 Furthermore, under Article 18(1) of Directive 2007/46, the manufacturer, in its capacity as the holder of an EC type-approval of a vehicle, is to deliver a certificate of conformity to accompany each vehicle, whether complete, incomplete or completed, that is manufactured in conformity with the approved vehicle type. In accordance with Article 26(1) of that directive, that certificate is required for the purposes of registration and sale or entry into service of a vehicle.

54 When acquiring a vehicle model of a type that has been approved and is, therefore, accompanied by a certificate of conformity, a consumer can reasonably expect that Regulation No 715/2007 and, in particular, Article 5 thereof, has been complied with in respect of that vehicle, even in the absence of specific contractual clauses.

55 Accordingly, Article 2(2)(d) of Directive 1999/44 must be interpreted as meaning that a vehicle which does not comply with the requirements of Article 5 does not 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, within the meaning of Article 2(2)(d) of that directive.

56 As the Advocate General observed in point 149 of his Opinion, that interpretation is not called into question by the fact that the vehicle concerned is EC type-approved, allowing that vehicle to be driven on the road. Directive 2007/46 envisages the situation in which the unlawfulness of an element of design of a vehicle, for example in the light of the requirements of Article 5 of Regulation No 715/2007, is discovered only after that approval has been granted. Thus, Article 8(6) of that directive provides that the approval authority may withdraw the approval of a vehicle. Furthermore, it follows from the first and third sentences of Article 13(1) of that directive that, where a manufacturer informs a Member State which has granted EC type-approval of a change in the information package, that Member State may, where necessary, decide, in consultation with the manufacturer, that a new EC type-approval is to be granted.

57 That appears to be the case here, since it is apparent from the order for reference that the type of vehicle at issue in the main proceedings was originally approved by the KBA without the presence of the switch system having been disclosed to it. It is also apparent from the order for reference that if the KBA had been aware of that system, it would not have granted EC type-approval for that type of vehicle.

58 Consequently, the answer to the first question is that Article 2(2)(d) of Directive 1999/44 must be interpreted as meaning that a motor vehicle falling within the scope of Regulation No 715/2007 does not show the quality which is normal in goods of the same type and which the consumer can reasonably expect 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 defeat device, the use of which is prohibited under Article 5(2) of that regulation.

59 By its second question, the referring court asks, in essence, whether Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device, which guarantees, in particular, compliance with the emission limits laid down by that regulation only in the temperature window, with the result that, in part of the territory of the European Union, that recirculation is fully operational only for approximately six months a year, may be justified under that provision.

60 Under Article 5(2) of Regulation No 715/2007, the use of defeat devices that reduce the effectiveness of emission control systems is to be prohibited. However, there are three exceptions to that prohibition, including that in Article 5(2)(a) of that regulation, namely where ‘the need for the device is justified in terms of protecting the engine against damage or accident and for safe operation of the vehicle’.

61 In so far as it lays down an exception to the prohibition on the use of defeat devices that reduce the effectiveness of emission control systems, that provision must be interpreted strictly (see, to that effect, judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraphs 111 and 112).

62 As regards, first of all, the concept of ‘engine’, as the Advocate General observed in points 118 and 119 of his Opinion, Annex I to Regulation No 692/2008 makes an explicit distinction between the engine and the pollution control system. The requirements relating to the ‘Engine’ are set out in point 3.3.1.2 of that annex, whereas those relating to ‘Pollution control system parameters’ are set out in point 3.3.1.3 of that annex. The latter point, under (a) and (c), expressly includes particulate filters and EGR. Furthermore, under the second subparagraph of Article 10(1) of that regulation, particulate filters are to be considered to be pollution control devices for the purposes of that regulation.

63 Consequently, the EGR valve, the EGR cooler and the diesel particulate filter, which the temperature window is intended to protect according to Porsche Inter Auto, constitute components that are distinct from the engine. The EGR valve is situated at the engine outlet, after the exhaust manifold. When opened, the EGR valve allows the exhaust gas to be passed through the gas inlet manifold in order to burn it a second time, with a heat exchanger, the EGR cooler, and to cool the burnt gas. The particulate filter, which is situated before the tailpipe, makes it possible to filter the air in order to retain the fine polluting particles.

64 As regards, next, the concepts of ‘accident’ and ‘damage’ referred to in Article 5(2)(a) of Regulation No 715/2007, the Court has previously held that, in order to be justified under that provision, a defeat device that reduces the effectiveness of the emission control system must allow the engine to be protected against sudden and exceptional damage (see, to that effect, judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraph 109).

65 The clogging up or the ageing of the engine cannot, in any event, be regarded as an ‘accident’ or ‘damage’, within the meaning of that provision, since such occurrences are, in principle, foreseeable and inherent in the normal operation of the vehicle (see, to that effect, judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraph 110).

66 That interpretation is supported by the objective pursued by Regulation No 715/2007, which is to ensure a high level of environmental protection and improve air quality within the European Union, which entails the effective reduction of NOx emissions throughout the normal life of vehicles. The prohibition laid down in Article 5(2) of that regulation would be devoid of substance and deprived of any effectiveness if car manufacturers were permitted to equip motor vehicles with such defeat devices with the sole aim of protecting the engine against clogging up and ageing (judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraph 113).

67 Only immediate risks of damage or accident to the engine which create a specific hazard when the vehicle is driven are therefore such as to justify the use of a defeat device under Article 5(2)(a) of Regulation No 715/2007.

68 The interpretation of the word ‘damage’ given by the Court in the judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines) (C‑693/18, EU:C:2020:1040), is not called into question by the argument of the German Government and Porsche Inter Auto that it follows from that word in the English version (‘damage’) and the German version (‘Beschädigung’) that that word does not cover only sudden and unforeseeable events.

69 First, as the Advocate General observed, in essence, in point 115 of his Opinion, although, unlike the French definition the definitions of that word in English and German do not necessarily imply that a removal is due to a ‘sudden’ event, they do not invalidate the Court’s interpretation of the word ‘damage’. Secondly, it should be recalled that the strict interpretation adopted by the Court is based on the grounds set out in paragraphs 61 and 66 above.

70 However, the German Government, Porsche Inter Auto and Volkswagen submit that the defeat device at issue is justified because, in the event of temperatures that are too low or too high, deposits may be formed, during the EGR, and thus lead to poor positioning of the EGR valve, namely, for example, it may no longer open or may no longer close correctly, or the valve may become completely blocked. A damaged or poorly positioned valve could cause damage to the engine itself and lead, inter alia, to loss of vehicle power. Furthermore, it is impossible to predict and calculate a threshold for when the EGR valve fault could arise, since it could take place suddenly and unpredictably, even if that valve has been maintained regularly. Sudden and unforeseeable losses of vehicle power would affect the safe operation of the vehicle, for example by considerably increasing the risk of a serious traffic accident when overtaking.

71 Furthermore, Porsche Inter Auto and Volkswagen submit that the clogging of components of the EGR system, by causing the malfunctioning or even the blocking of the EGR valve, is liable to lead to the combustion of the particulate filter and to the engine catching fire, or even, as a result, to the entire vehicle catching fire, which would jeopardise the safe operation of the vehicle.

72 In that regard, it should be noted that it is apparent from the very wording of Article 5(2)(a) of Regulation No 715/2007 that, in order to fall within the exception provided for in that provision, the need for a defeat device must be justified not only in terms of protecting the engine against damage or accident, but also in terms of the safe operation of the vehicle. As the Advocate General pointed out in point 106 of his Opinion, in view of the use of the conjunction ‘and’ in that provision, it must be interpreted as meaning that the conditions laid down therein are cumulative.

73 Consequently, as has been pointed out in paragraph 61 above, and in view of the strict interpretation to be given to that exception, a defeat device such as that at issue in the main proceedings can be justified under that exception only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the EGR system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. As the Advocate General pointed out in point 126 of his Opinion, however, such a determination is, in the main proceedings, part of the assessment of the facts which falls to the referring court alone.

74 Furthermore, while it is true that Article 5(2)(a) of Regulation No 715/2007 does not formally impose any further conditions for the application of the exception laid down in that provision, the fact remains that a defeat device which, under normal driving conditions, operated during most of the year in order to protect the engine from damage or accident and ensure the safe operation of the vehicle, would clearly run counter to the objective pursued by that regulation, from which that provision allows derogation only in very specific circumstances, and would result in a disproportionate infringement of the principle of limiting NOx emissions from vehicles.

75 In view of the strict interpretation that must be given to Article 5(2)(a) of Regulation No 715/2007, such a defeat device cannot therefore be justified under that provision.

76 To accept that a defeat device such as that described in paragraph 74 above may fall within the exception provided for in Article 5(2)(a) of Regulation No 715/2007, would result in that exception being applicable for most of the year under real driving conditions prevalent in the territory of the European Union, with the result that the principle of the prohibition of such defeat devices, laid down in Article 5(2) of that regulation, could, in practice, be applied less frequently than that exception.

77 In addition, Porsche Inter Auto, Volkswagen and the German Government submit that the concept of ‘need’ for a defeat device does not require the best available technology and that account must be taken of the state-of-the-art technology at the time of EC type-approval in order to assess whether that need is justified in terms of protecting the engine and for safe operation of the vehicle, within the meaning of Article 5(2)(a) of Regulation No 715/2007. It is not contested that the use of an EGR system which operates in line with a temperature window represents, to a different extent depending on the date of approval, state-of-the-art technology. Furthermore, Porsche Inter Auto, Volkswagen and the German Government submit that the interpretation of the word ‘need’ in that provision should take account of the need to balance environmental interests with the economic interests of manufacturers.

78 In that regard, it must be pointed out, as the Advocate General observed in point 129 of his Opinion, first, that it is apparent from recital 7 of Regulation No 715/2007 that, when the EU legislature determined the emission limits for pollutants, it took into account the economic interests of manufacturers and, in particular, the costs imposed on undertakings by the need to comply with those limits. It is thus for manufacturers to adapt and apply technical devices capable of complying with those limits as that regulation does not require the use of any particular technology.

79 Secondly, as stated in paragraph 66 above, the objective pursued by Regulation No 715/2007, which consists in guaranteeing a high level of protection of the environment and improving air quality within the European Union, means NOx emissions being effectively limited throughout the normal life of vehicles (judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines), C‑693/18, EU:C:2020:1040, paragraph 113). Permitting a defeat device under Article 5(2)(a) of that regulation solely because, for example, research costs are high, the technical device is expensive or vehicle maintenance is more frequent or more costly for the user would jeopardise that aim.

80 In those circumstances, and in view of the fact that that provision must, as noted in paragraphs 61 and 73 above, be interpreted strictly, it must be held that the ‘need’ for a defeat device, within the meaning of that provision, 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 immediate risks of damage or accident to the engine, which give rise to a specific hazard when driving the vehicle.

81 Consequently, the answer to the second question is that Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device, which guarantees, in particular, compliance with the emission limits laid down by that regulation only in the temperature window, can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the EGR system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. In any event, a defeat device which, under normal driving conditions, operated during most of the year in order to protect the engine from damage or accident and ensure the safe operation of the vehicle could not fall within the exception provided for in Article 5(2)(a) of Regulation No 715/2007.

82 By its third question, the referring court asks, in essence, whether Article 3(6) of Directive 1999/44 must be interpreted as meaning that a lack of conformity consisting of the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, may be classified as ‘minor’ where, even if the consumer had been aware of the existence and operation of that device, he or she would still have purchased that vehicle.

83 Under Article 2(3) of Directive 1999/44, it is to be deemed that there is not a lack of conformity 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.

84 However, as the Advocate General observed in point 158 of his Opinion, that provision does not apply to the dispute in the main proceedings, since it is not disputed that, at the time of the sale of the vehicle at issue, DS was not aware of the alleged lack of conformity and could not reasonably have been aware of that defect.

85 However, whether or not a lack of conformity is ‘minor’ within the meaning of Article 3(6) of Directive 1999/44, on which the question whether the consumer is entitled to rescind the contract depends, is not subject to such a subjective element.

86 Therefore, the fact that, after having purchased a good, a consumer admits that he or she would have purchased that good even if he or she had been aware of such a lack of conformity is not relevant for the purposes of determining whether a lack of conformity must be classified as ‘minor’.

87 It is in the light of that clarification that it is necessary to determine whether Article 3(6) of Directive 1999/44 must be interpreted as meaning that a lack of conformity consisting of the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, may be classified as ‘minor’.

88 Since Directive 1999/44 does not define the concept of a ‘minor lack of conformity’, the meaning and scope of that concept must be determined in accordance with its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part (see, to that effect, judgments of 9 July 2020, Constantin Film Verleih, C‑264/19, EU:C:2020:542, paragraph 29, and 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 83).

89 Having regard, first of all, to the usual meaning of the term ‘minor’, the concept of ‘minor lack of conformity’ refers to a lack of conformity of minor importance.

90 As regards, next, the context in which that concept occurs, it should be noted that Article 3(3), (5) and (6) of Directive 1999/44 establishes a clear sequence of implementation of remedies to which the consumer is entitled in the event of non-conformity of the goods (judgment of 23 May 2019, Fülla, C‑52/18, EU:C:2019:447, paragraph 58).

91 Thus, in accordance with the first subparagraph of Article 3(3) of that directive, the consumer may, in the first place, require the seller to repair the goods or to replace them, unless this is impossible or disproportionate (judgment of 23 May 2019, Fülla, C‑52/18, EU:C:2019:447, paragraph 59).

92 It is only if the consumer is entitled to neither repair nor replacement of the goods not in conformity 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, under Article 3(5) of that directive, require the rescission of the contract, unless, in accordance with Article 3(6) of that directive, the lack of conformity is minor (judgment of 23 May 2019, Fülla, C‑52/18, EU:C:2019:447, paragraph 60).

93 As regards, lastly, the aims of Directive 1999/44, it should be noted that it is apparent from recitals 1 and 10 to 12 of that directive that it aims to establish a fair balance between the interests of the consumer and the seller, by guaranteeing the consumer, as the weak party to the contract, complete and effective protection from faulty performance by the seller of his contractual obligations, while enabling account to be taken of economic considerations advanced by the seller (see, to that effect, judgments of 16 June 2011, Gebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 75, and of 23 May 2019, Fülla, C‑52/18, EU:C:2019:447, paragraphs 41 and 52).

94 Consequently, as the Advocate General observed in point 160 of his Opinion, rescission of the contract, which constitutes the weightiest legal remedy available to the consumer, can be sought only where a lack of conformity is of a sufficient magnitude.

95 In the present case, as regards the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, it is apparent from paragraphs 49 to 52 above that a vehicle type with such a device cannot be approved. Furthermore, it should be noted that such a vehicle is not able to comply with the emission limits laid down in Annex I to that regulation. Recitals 1 and 4 to 6 of that regulation emphasise the importance of environmental protection and the need to reduce NOx emissions from diesel vehicles in order to improve air quality and comply with limit values for pollution.

96 Therefore, the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, cannot be regarded as being a minor lack of conformity within the meaning of Article 3(6) of Directive 1999/44.

97 Consequently, the answer to the third question is that Article 3(6) of Directive 1999/44 must be interpreted as meaning that a lack of conformity consisting of the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, is not to be classified as ‘minor’ even where the consumer would still have purchased that vehicle if he or she had been aware of the existence and operation of that device.

98 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 2(2)(d) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as meaning that a motor vehicle that falls within the scope of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information does not show the quality which is normal in goods of the same type and which the consumer can reasonably expect 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 defeat device, the use of which is prohibited under Article 5(2) of that regulation.

2. Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device, which guarantees, in particular, compliance with the emission limits laid down by that regulation only where the outside temperature is between 15 and 33 °C, can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. In any event, a defeat device which, under normal driving conditions, operated during most of the year in order to protect the engine from damage or accident and ensure the safe operation of the vehicle could not fall within the exception provided for in Article 5(2)(a) of Regulation No 715/2007.

3. Article 3(6) of Directive 1999/44 must be interpreted as meaning that a lack of conformity consisting of the presence, in a vehicle, of a defeat device, the use of which is prohibited under Article 5(2) of Regulation No 715/2007, is not to be classified as ‘minor’ even where the consumer would still have purchased that vehicle if he or she had been aware of the existence and operation of that device.

Court of Justice of the European Communities (including Court of First Instance Decisions)