Leiden Law Blog

Me and my VW dealer

Posted on by Alex Geert Castermans in Private Law
Me and my VW dealer

I like my VW-dealer. Once he sold me a brand new Passat Variant Bluemotion and ever since he has never let me down: fixing headlights when they were dead, checking the car before leaving for a holiday, changing tyres for the season, serving coffee early in the morning. I admit, in the first few months I did not appreciate his advice to buy a diesel that much, because on several occasions I accidentally filled it up with unleaded petrol. It cost me quite a few hours, waiting at the filling  station for help. But I got used to it, satisfied with the many kilometres per litre.

I am writing this in order to be transparent. It must be clear that I have a stake in this blog.

On 2 October 2015 the European  Consumer Organisation wrote a letter to VW, expressing its concern about the possible impact for consumers with regard to ‘defeat devices’ that lower the emissions of air pollutants during official emissions tests. It demanded, amongst other things, to ensure the fulfilment of consumer claims based on consumer sales law, including cancellation and repayment of the purchase price or a proportionate reduction of the purchase price and damages for any loss.

As we speak, a mass claim for damages based on ‘deliberate fraud’ is being prepared, apparently aimed at VW.

I like to focus on the autonomy of the individual consumer, which has been infringed by the misinformation on the Passat’s ecological footprint, or perhaps ‘tyre’ print is more appropriate. Thus, cancellation comes into play.

Cancellation will involve VW dealers with whom consumers share a contractual relationship. In order to annul the contract, consumers do not have to turn to VW. According to Dutch law, they merely have to write a letter to the dealer, simply stating that the purchase of their car is annulled because of the defeat devices. Consequently, the dealer will regain ownership of the car and, in principle, he will have to repay the purchase price.

Yet, one cannot be sure the annulment will cause the above effect, for it is not certain that information on fuel consumption can be regarded as a guarantee. In a Dutch case (Court of Appeal  Amsterdam 17 April 2012) a consumer complained about the fact that his Smart only used 1 litre per 15.2 kilometres, while the product specifications indicated 20.4. In vain, for these indications are the result of standard procedures, which are aimed at comparing the quality of different types of cars rather than guaranteeing the quality of a specific type. In another Dutch case (Supreme Court  21 May 2010) a company that bought a device called a fuel saver claimed it was entitled to receive a product that indeed would lower fuel consumption. Again, in vain.

At the time, these decisions seemed to be reasonable. Now I am starting to suspect that they encouraged VW’s business lawyers to advise their colleagues that they could get away with installing dodgy  software .

In July 2010 I was looking for a car that would clear my conscience a bit, troubled by travelling 135 kilometres a day by car. I was assured that the Passat Variant Bluemotion met environmental standards. Now I  have reason to believe that I was misinformed. This matters, considering my intentions which were known to the dealer and inspired by the VW fiddlers. So I will write to him and tell him that I annul the contract, under the condition that my car – from then on: my former car – does indeed contain defeat devices. If this condition is fulfilled, I trust courts will be stern with my dear dealer.

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