Case C-145/20 Porsche Inter Auto and Volkswagen – Manipulated software as a minor lack of conformity?

0582749 - ÚSP 2024 RIV DE eng J - Journal Article
Simon, Rita
Case C-145/20 Porsche Inter Auto and Volkswagen – Manipulated software as a minor lack of conformity?
Journal of European Consumer and Market Law. Roč. 12, č. 2 (2023), s. 71-75. ISSN 2364-4710
Grant - others:AV ČR(CZ) LQ300682001
Program: Prémie Lumina quaeruntur
Institutional support: RVO:68378122
Keywords : CJEU * Case C-145/20 * sector-specific legislation * consumer * consumer law * follow-on software * emissions
OECD category: Law
Method of publishing: Metadata only

This summer, the CJEU published the second wave of judgments, based on the preliminary ruling references from the Austrian Supreme Court, the Eisenstadt Regional Court and the Klagenfurt Regional Court, challenging the permissibility of the follow-on software replacing the inadmissible ,switch software'. Two of these follow in the wake of the earlier French ruling on defeat devices on diesel engines, interpreting Regulation (EC) No 715/2007 on type approval. Both applied the same legal reasoning concerning the replaced so-called ,temperature window' software, which allowed the exhaust gas regulation was fully effective only when the external temperature was between 15 and 33 C. Case C-128/20 considered that this follow-on software should also have been classified as a defeat device, and that it may only be allowed if it is strictly needed to avoid immediate risks of accident or damage to the engine. The Luxembourg court verdict was also that the software concerned does not fulfil these conditions. The second judgment, C-134/20, practically repeated these findings, adding that, when assessing the admissibility of such a device, it is irrelevant whether it was installed at the vehicle’s production stage of or only during its repair. Although both judgments help somewhat bridge the gap between sector-specific legislation on vehicles and the Sale of Consumer Goods Directive, a closer linkage was not created. This intertwining between the contractual liability of car dealers and sector-specific legislation on vehicle manufacturing was achieved by the third case. Judgment C-145/20 answers essential legal questions regarding the sales guarantee, especially on the conformity of goods, which will be the focus of this comment. After a short summary of the C-145/20 case and the applicable Austrian law (para. II), this article will answer whether the consumer can reasonably expect that an approved vehicle filters harmful emissions from its engine, and whether fitting a prohibited defeat system should be seen as a minor lack of conformity, as understood by the Directive on Sale of Consumer Goods (afterwards SCG), if the purchaser acquired the vehicle even though he was aware of the presence of such a device (para. III) Furthermore, it will claim that the judicature cannot replace the omitted market surveillance, and predicts a third wave of claims brought by NGOs against vehicle manufacturers and market authorities for causing environmental harm (para. IV).
Permanent Link: https://hdl.handle.net/11104/0350826