First OGH Merits Decision on Diesel Scandal

Apr 7, 2023 Benn-Ibler Rechtsanwälte GmbH

In the proceedings at issue, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) examined the claim of a car buyer against the car seller concerning the exhaust-emission control device installed in the diesel motor vehicle. The significance of these proceedings was evident from the fact that the OGH had sought the assistance of the European Court of Justice (ECJ) by submitting questions for a preliminary ruling.

The plaintiff’s diesel-powered motor vehicle had been fitted with software that reduced nitrogen oxide levels during normal driving, which made the motor vehicle seem to comply with the exhaust emission limits. Even an order from the German Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles) to remove this software setting by means of an update did not remedy the flaw. The thermal window thus put in place does constitute an exception according to Art 5(2)(a) of Regulation 715/2007/EU, as the system is only fully active at temperatures between 15 and 33 degrees Celsius.

The Austrian Supreme Court referred several questions to the ECJ for a preliminary ruling. These included 1) whether such a defeat device, which only becomes fully functional at temperatures between 15 and 33 degrees Celsius, is permissible under Article 5(2)(a) of Regulation (EC) No 715/2007 and 2) whether a motor vehicle covered by the same regulation has the ‘quality’ which is usual for goods of the same type and which consumers can reasonably expect if a motor vehicle is equipped with an impermissible defeat device but the vehicle type has a valid EC type-approval, as is the case in this instance.

The ECJ considered on this as follows:

Admissibility, as inquired in the first question, is only given if such a device is strictly necessary to avoid risks or accidents caused by the malfunction of an exhaust gas recirculation system component. On the second question, the CJEU ruled that such a motor vehicle does not have the quality which is usual for goods of the same kind and which consumers may reasonably expect. From this, the OGH concluded that the defect in quality in this case cannot be merely classified as ‘minor’.

OGH 10 Ob 2/23a (21.02.2023)