Judgment;Abstract — ECLI:EU:C:2022:571
Date: 2022-07-14
Language of the case: German
Court formation: Grand Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation  C-134/20 — 1 
Case C-134/20 
Request for a preliminary ruling 
Date lodged: 
11 March 2020 
Referring court: 
Landesgericht Eisenstadt (Austria) 
Date of the decision to refer: 
29 January 2020 
Applicant: 
JR 
Defendant: 
Volkswagen AG 
  
[…] 
REPUBLIC OF AUSTRIA 
LANDESGERICHT EISENSTADT (EISENSTADT REGIONAL COURT) 
[…]  
ORDER 
IN THE MATTER OF: 
Applicant  […] 
JR  
[…] Vienna 
 
 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 1. 2020 — CASE C-134/20 
 
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Defendant 
[…] Wolfsburg 
 
Concerning: 
EUR 22 238.64 […] 
1. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling: 
a) Is Article 5(1) 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 to be interpreted as meaning that 
the equipment of a vehicle, within the meaning of Article 1(1) of 
Regulation No 715/2007, is inadmissible if the exhaust gas 
recirculation valve (i.e. a component that is likely to affect emissions 
performance) is designed in such a way that the exhaust gas 
recirculation rate (i.e. the portion of the exhaust gas being 
recirculated) is regulated in such a way that the valve ensures a low-
emission mode only between 15 and 33 degrees Celsius and only 
below an altitude of 1 000 m, and, outside this temperature window, 
per 10 degrees Celsius, and above an altitude [Or. 2] of 1 000 m, per 
250 metres of altitude, the rate decreases in a linear way down to zero, 
meaning that NOx emissions increase beyond the limits of Regulation 
No 715/2007? 
b) Is it relevant to the assessment of Question a) whether the equipment 
referred to in Question a) is necessary to protect the engine against 
damage? 
c) Furthermore, is it relevant to the assessment of Question b) whether 
the part of the engine which is to be protected against damage is the 
exhaust gas recirculation valve? 
d) Is it relevant to the assessment of Question a) whether the equipment 
of the vehicle referred to in Question a) was already installed when the 
vehicle was produced or whether the regulation of the exhaust gas 
recirculation valve described in Question a) is to be installed in the 
vehicle by way of a repair within the meaning of Article 3(2) 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? 
2. The proceedings are stayed pending delivery of the preliminary ruling of the 
Court of Justice of the European Union […]. 
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GROUNDS: 
I. The facts 
In 2013, the applicant purchased a VW Touran Comfortline BMT TDI model 
vehicle (‘the vehicle at issue’) for a purchase price of EUR 27 600.00. A 1.61 EA 
189 diesel engine with an output of 77 kW is installed in the vehicle at issue […]. 
The defendant is the parent company of the VW Group, has its registered office 
in Germany and has been the subject of public discussion on the diesel emissions 
scandal since autumn 2015. 
Specifically, the vehicle at issue […] has the following (relevant) data: [Or. 3] 
Make: Volkswagen VW 
[…] […] 
Propulsion: Diesel 
[…] […] 
Emission standard: EURO 5 
Exhaust emissions according to: 566/2011F 
CO: 0.1354 
NOx: 0.1362 
(T) HC+NOx: 0.1666 
[…] […] 
Total fuel consumption: 4.5 1/100 km (119 g CO2/km) 
 
The vehicle at issue is equipped with an engine-based or internal pollution control 
device, namely an exhaust gas recirculation valve (‘EGR valve’). The vehicle at 
issue has an exhaust gas after-treatment system in the form of a particulate filter, 
but does not have such a system for NOx […]. The EGR valve recirculates (in 
very simplified terms) exhaust gas from the engine outlet into the engine intake 
passage in order to replace part of the fresh air. This reduces the peak temperature 
during combustion and slows down the combustion process, which in turn reduces 
NOx emissions. NOx emissions are also influenced by the timing and duration of 
the injection, as well as the design of the engine. However, if the EGR valve is 
removed or shut down, the vehicle at issue would not be able to comply with the 
NOx limit of Regulation No 715/2007. The EGV valve forms part of the engine. 
The manufacturer of the vehicle at issue designed it and all other vehicles in that 
series that have the EA 189 engine in such a way that the software provides for a 
mode 0 (drive mode) and a mode 1 (NEDC). […] 
When the vehicle is started, it is always in mode 1 [Or. 4] (NEDC). If the 
software detects the test situation, i.e. the operation of the vehicle within the limits 
of the NEDC, the vehicle remains in mode 1. If the software detects that the 
vehicle is being operated outside the tolerance levels of the NEDC (deviations 
from the speed profile of +/- 2 km/h or +/- 1 s), the vehicle switches to mode 0 
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(drive mode). This process is described by the terms ‘switch logic’, ‘jump 
function’ or ‘manipulation software’. In mode 0 (drive mode) the exhaust gas 
recirculation rate (‘EGR rate’), that is to say the proportion of exhaust gas that is 
recirculated in the engine, is reduced and the injection timing and duration are 
altered. The vehicle at issue operated in mode 0 in the NEDC does not comply 
with the NOx limits of Regulation No 715/2007. Given that the vehicle is almost 
exclusively in mode 0 (drive mode) when actually being operated, it also fails to 
comply with the NOx limits when in drive mode. 
The switching logic became public knowledge via a letter of the United States 
Environmental Protection Agency (‘the EPA’) dated 18 September 2015, in 
which the switching logic in the manufacturer’s vehicles produced for the US 
market was described and recognised as a violation of the law. It is not possible to 
establish whether and, if so, how the engines and engine control software of the 
vehicle at issue differ from the engine design and control software of vehicles 
produced by the manufacturer for the US market. […] 
The vehicle is technically sound and roadworthy and can therefore (in this respect) 
be fully used in road traffic. 
When purchasing the vehicle, it was important to the applicant to acquire a diesel 
vehicle with low fuel consumption. […] Had the applicant known that the vehicle 
at issue did not comply with statutory provisions due to the manipulation 
software, he would not have purchased the vehicle at issue. 
[…] 
By letter sent by the general importer for VW vehicles in Austria, [Or. 5] Intercar 
Austria GmbH, dated 8 October 2015, the applicant was notified that repair work 
would have to be carried out to the vehicle at issue and that the manufacturer 
would bear all costs associated with such repair work on the vehicle at issue. From 
the overall context of these letters, it can be seen that the NOx values stated in the 
type approval deviated from the actual values. The applicant was also asked to 
arrange for an update to be installed, which would remove the ‘switch logic’. The 
update was developed by the manufacturer and installed in the vehicle at issue. 
The purpose of the update is to ensure that the EGR valve, that is to say a 
component likely to affect emissions, is designed so that the EGR rate is regulated 
in such a way that a low emission mode is ensured only between 15 and 33 
degrees Celsius and only below an altitude of 1 000 m and, outside this 
temperature window, per 10 degrees Celsius, and above an altitude of 1 000 m, 
per 250 m, the exhaust gas recirculation rate decreases in a linear way down to 
zero […] (this process is referred to hereinafter as ‘temperature window’). A 
reduction of the EGR rate to zero leads to an increase of NOx emissions beyond 
the limits of Regulation No 715/2007. The update makes further modifications 
which — compared to before the update — change the exhaust emissions. Owing 
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to a lack of information on this update, it is not possible to determine what these 
changes are — with the exception of the temperature window system. 
It cannot be found that the temperature window is necessary in order to protect the 
engine against damage. It cannot be found that consumption, the production of 
carbon-particulate matter, performance and total mileage are negatively affected 
by the update. It cannot be found that, in the event that the update is installed 
without a temperature window, the requirements of Regulation No 715/2007 with 
regard to the durability of pollution control devices in accordance with 
Article 4(2) of Regulation No 715/2007 are not (cannot be) complied with. For 
most of the year, temperatures in Austria are below 15 degrees Celsius. It cannot 
be found that, after the update has been installed, the vehicle’s market value 
decreases. 
The German Federal Motor Transport Authority (Kraftfahrt-Bundesamt, ‘the 
KBA’) […] approved a technical modification — namely the aforementioned 
update — […] and (therefore) refrained from repealing the type approval, 
whereby the KBA found (from a legal point of view to a certain extent) that (i) 
there is no impermissible defeat device, (ii) the existing defeat devices are 
considered to be permissible, (iii) the limit values for polluting emissions and the 
other requirements are complied with, (iv) the fuel consumption values and CO2 
emissions originally specified by the manufacturer have been confirmed by a 
technical service, [Or. 6] and (v) the engine power referred to so far, the 
maximum torque, and the existing noise emission values remained unchanged. 
The KBA has no knowledge of the software used by the manufacturer for the 
update, because it did not request that it be sent to it. It is not possible to 
determine what (other) information the KBA had available for the purpose of 
authorising the update and for making the above findings. 
II. Assessment and relevance of the evidence: 
The extent to which further evidence needs to be taken also depends on the legal 
questions of EU law to be answered. In relation to those questions and their 
relevance to the national proceedings, the Court of Justice considers that the facts 
have been clearly established. 
[…] [More details regarding the evidence taken] 
III. Basis in EU law: 
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 (‘Regulation No 715/2007’) provides, 
inter alia, as follows: 
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Recital 15: [Or 7] 
The Commission should keep under review the need to revise the New European 
Drive Cycle as the test procedure that provides the basis of EC type approval 
emissions regulations. Updating or replacement of the test cycles may be required 
to reflect changes in vehicle specification and driver behaviour. Revisions may be 
necessary to ensure that real world emissions correspond to those measured at 
type approval. The use of portable emission measurement systems and the 
introduction of the ‘not-to-exceed’ regulatory concept should also be considered. 
Article 5: 
(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; 
(b) the device does not function beyond the requirements of engine starting; or 
(c) the conditions are substantially included in the test procedures for verifying 
evaporative emissions and average tailpipe emissions. 
The emission limit values set out in Table 1 (Euro 5) of Annex 1 to Regulation 
No 715/2007 apply to the vehicle at issue. 
As part of the approval procedure, these values must be determined for the vehicle 
at issue by means of the so-called type 1 test as defined in Annex III to 
Commission Regulation (EC) No 692/2008 of 18 July 2008 implementing and 
amending Regulation (EC) No 715/2007 of the European Parliament and of the 
Council 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 (‘Regulation 692/2008’). 
With regard to the technical requirements, paragraph 3.1 of Annex III to 
Regulation 692/2008 refers to Annex 4 to UN/ECE Regulation No 83. That 
Annex 4 describes the [Or. 8] procedure for the Type I test defined in 
paragraph 5.3.1 of UN/ECE Regulation No 83, and Appendix 1 to that Annex 4 
provides for the test cycle to be adhered to for that test. 
This test cycle is commonly referred to as the ‘New European Driving Cycle’ or 
‘NEDC’ and is referred to as such in this order. The vehicle test defined in 
paragraph 5.3.1 of UN/ECE Regulation No 83 takes place on a chassis 
dynamometer and lasts 19 minutes and 40 seconds (= 1 180 seconds). This 
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involves driving through the NEDC, which consists of a Part 1, the ‘urban cycle’ 
(paragraph 5.3.1.2.2. of UN/ECE Regulation No 83) and a Part 2, the ‘extra-urban 
cycle’ (paragraph 5.3.1.2.3. of UN/ECE Regulation No 83). These two parts of the 
NEDC can be graphically represented together as follows: 
New European Driving Cycle (NEDC) 
 
[…] 
Point 9 of Article 3 of Regulation 692/2008 provides as follows: 
The Type 6 test measuring emissions at low temperatures set out in Annex VIII 
shall not apply to diesel vehicles. 
However, when applying for type-approval, manufacturers shall present to the 
approval authority with information showing that the NOx aftertreatment device 
reaches a sufficiently high temperature for efficient operation within 400 seconds 
after a [Or. 9] cold start at -7 °C as described in the Type 6 test. 
In addition, the manufacturer shall provide the approval authority with 
information on the operating strategy of the exhaust gas recirculation system, 
including its functioning at low temperatures. 
This information shall also include a description of any effects on emissions. 
The approval authority shall not grant type-approval if the information provided 
is insufficient to demonstrate that the after-treatment device actually reaches a 
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sufficiently high temperature for efficient operation within the designated period 
of time. 
At the request of the Commission, the approval authority shall provide 
information on the performance of NOx after-treatment devices and exhaust gas 
recirculation system at low temperatures. 
IV. Position under national law/precedent: 
1. Contesting the contract due to mistake 
Paragraph 871 of the Allgemeines Bürgerliches Gesetzbuch (Austrian General 
Civil Code, ‘ABGB’) provides that ‘if a party was labouring under a mistake in 
relation to the content of a declaration given by him or received by the other 
party, and that mistake affects the essence, or fundamental aspect of that essence, 
in relation to which the intention of the declaration was principally directed and 
declared, that party shall not incur any liability, provided that the mistake was 
caused by the other party, or should have been obvious to him from the 
circumstances, or was rectified in a timely manner’. 
That provision therefore lays down a number of conditions; if they are met and an 
appropriate action is brought, the court must rescind the contract ex tunc by means 
of a judgment altering the contractual relationship. Details of the conditions 
relevant to the preliminary ruling: 
1.1 Existence of a mistake: 
It is apparent from the facts of the case that the applicant assumed that he was 
buying a vehicle that complies with statutory (EU-law) provisions. It is also 
apparent from the facts of the case that the vehicle purchased by the applicant was 
installed with a ‘switching logic’. This switching logic runs counter to the 
requirements of Regulation 715/2007, in particular Article 5. This is due to the 
fact that the EGR valve and [Or. 10] the injection system are both components 
that are likely to affect emissions performance and were designed so as to enable 
the vehicle or engine to comply with the requirements of Regulation 715/2007 and 
its implementing measures solely when performing a type 1 test under Annex III 
to Regulation 692/2008. When the vehicle is operated under normal conditions of 
use, those components are each regulated in such a way that such operation does 
not comply with Regulation 715/2007 and its implementing measures. 
There is also no permissible defeat device within the meaning of Article 5(2) of 
Regulation 715/2007, because, as correctly argued by the defendant itself, the case 
does not concern such a device […]. Rather, the programming is to be specifically 
viewed in such a way that, in normal driving operation, the vehicle at issue is not 
equipped in a manner that complies with the requirements of Regulation 715/2007 
(in particular Article 5(1)) from the outset, such that the (exceptional) 
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disconnection of components likely to affect emissions and therefore the 
deactivation of a mode of operation that complies with those requirements can no 
longer take place. Rather, the vehicle at issue is only exceptionally in a state 
(mode 1 [NEDC]) that complies with the requirements. 
The vehicle at issue therefore does not comply with the statutory (EU-law) 
requirements. The applicant was labouring under a mistake in relation to this fact, 
meaning that this condition is fulfilled. 
1.2 Significance of the mistake: 
[…] It is only within relatively strict limits that the ABGB provides for the 
possibility […] of invoking a mistake […]. Such a mistake, which leads to the 
rescission of the contract, is commonly referred to as ‘significant’. 
[…] In the present case, the applicant expected the vehicle to comply with 
statutory (EU-law) provisions when he concluded the contract. As established 
above, the vehicle at issue does not meet these expectations. Specifically, the 
question is whether this is a characteristic that is tacitly agreed by virtue of the 
nature of the transaction. […] [Or. 11] […] [Assessment as to whether the 
mistake is significant]. The mistake […] is significant. 
1.3 Materiality of the mistake: 
A mistake is material if, without the mistake, the declarant would not have 
concluded the transaction; a mistake is merely insignificant if, without the 
mistake, the declarant would have concluded the transaction differently […]. 
It is apparent from the facts of the case that the applicant would not have 
purchased the vehicle at issue had he known that it did not comply with statutory 
provisions due to the manipulation software. 
On the basis of the legal situation described above, it must therefore be found that 
the mistake is material in the sense referred to above; it was a causal factor in the 
conclusion of the contract. The contract must therefore be rescinded if the other 
conditions are met. 
1.4 Contesting the transaction: 
Despite the fact that the conditions in points 1.1 to 1.3 are met, the applicant may 
contest the transaction only if one of the following conditions is met: (i) the 
mistake was caused by the other party, (ii) the mistake should have been obvious 
to the other party, (iii) the mistake was not rectified in a timely manner, or (iv) 
both parties to the contract were subject to a common mistake […]. [Assessment 
as to whether it is possible to contest the error] As a result of the legal assessment, 
it must therefore be held that the applicant may contest the contract. 
1.5 No longer any interest in bringing proceedings: 
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Under Austrian law, it is considered that the contractual partner of the person 
labouring under a mistake may prevent the legal consequences of the mistake by 
putting that person in the position he would have been in if his mistaken belief had 
been correct, that is to say if he maintains the transaction in the form in which the 
person labouring under a mistake intended to conclude it. The declarant then no 
longer has a grievance and therefore no longer has an interest in bringing 
proceedings. [Or. 12] 
[…] The defendant observes that, due to the installation of the update, the 
applicant no longer has any interest in bringing proceedings within the meaning of 
the aforementioned legal position and that the contract should therefore not be 
rescinded. 
The applicant claims that the installation of the update does not mean that he no 
longer has any interest in bringing proceedings and bases this, in particular, on the 
fact that the switching logic is also an unlawful measure. 
When delivering its judgment, the national court must therefore clarify the 
question of whether the status after the update is brought about by a technical 
solution that complies with the requirements of EU law, in particular Regulation 
715/2007 and Regulation 692/2008. It is only if this is the case that the applicant 
no longer has any interest in bringing proceedings, that the contract should not be 
rescinded or the price reduced and that the action should therefore be dismissed. 
[…] 
The question asked will therefore constitute a precedent for the present 
proceedings. 
V. Grounds for the question referred: 
Each of the questions referred were raised because there is no (established) case-
law from the CJEU on the interpretation of Article 5(1) of Regulation 715/2007 in 
the context of the present case. […] 
The Austrian courts are intensively dealing with this matter. […] It is also known 
from the proceedings that courts in other Member States are also dealing with this 
issue [Or. 13], meaning that these questions are indeed of EU-wide importance. 
[…] 
Eisenstadt Regional Court, 
[…] 
Eisenstadt, 29 January 2020 
[…]