Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 24 March 2020 — DS v Porsche Inter Auto GmbH & Co KG and Volkswagen AG

(Case C-145/20)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: DS

Defendants: Porsche Inter Auto GmbH & Co KG, Volkswagen AG

Questions referred

Is 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 ¹ to 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 ² 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?

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 between 15 and 33 degrees Celsius, 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?

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 was aware of the presence and operation of that device?

____________

¹ OJ 1999 L 171, p.12.

² OJ 2007 L 171, p.1.