Court of Justice 23 September 2021, C-134/20 (GSMB Invest GmbH & Co. KG v Auto Krainer GesmbH.)

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Advocate General Rantos delivered a joint Opinion in Cases C‑128/20, C‑134/20, and C‑145/20 addressing whether software installed in the electronic engine controller of Euro 5 diesel vehicles that limits exhaust gas recirculation (EGR) and thereby increases NOx emissions outside a defined temperature and altitude window ('temperature window') constitutes a prohibited 'defeat device' within the meaning of Article 3(10) and Article 5(2) of Regulation (EC) No 715/2007. The Opinion further examines whether such a device may be justified under the engine-protection exception in Article 5(2)(a) of that Regulation, including where the device was installed by way of a repair rather than at the time of original manufacture. Additionally, the Opinion considers whether the presence of such a device, if unlawful, may give rise to a minor lack of conformity entitling consumers to contract rescission under Directive 1999/44/EC, including in circumstances where the consumer would have purchased the vehicle even with knowledge of the device.AI