CASE

A car producer put a device or soft ware in its engines that could detect when the engine was being tested and improve its greenhouse gas emissions only during the test. Outside these laboratory test conditions, the level of emissions was much higher, exceeding the maximum level allowed by law.

A group of car owners demand compensation from the producer. Will they receive compensation and, if so, for what losses? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.

DISCUSSIONS

AUSTRIA

Matthias Dangl and Georg E Kodek

Operative Rules

Car owners will receive compensation under Austrian tort law (§ § 874 and 1295 para 2 ACC). They will receive compensation for the difference between the price they actually paid for the car and the price they would have paid if they had known about the soft ware. Alternatively, they could rescind the contract. Then they have to return the car and can reclaim the purchase price (subject to a deduction for the use of the car in the meantime).

A collective action against the manufacturer (as described in the Austrian section in the procedural rules chapter) would be possible.

Legal Formants

The liability of the manufacturer under § 874 ACC presupposes that it acted intentionally (i.e. caused the conclusion of the contract through deliberate deception). In the case of vehicles with a switch-off device, it seems obvious that someone who ‘works for’ to the manufacturer must have committed the manipulation intentionally.

BELGIUM

Artuur Keukeleire, Larissa Vanhooff and Britt Weyts

Operative Rules

There are a number of grounds on which the consumers could base their claim; however, their chances of success are inversely proportional. First, they claim nullity of the contract based on defects of will to conclude a contract and, more specifically, on error or deceit (Article 1108 of the old BCC).

Second, they can claim the nullity of the contract for an illicit object. Third, the buyers can invoke the indemnity for hidden defects (see Case 5 above for further details). Fourth, they can claim annulment of the contract based on non-conformity (a consumer purchase agreement).

Both consumers and SMEs may institute an action for collective redress under Belgian law (see Case 6 above).