Case law Developments in PIL

Remaining Questions About CJEU Judgment in VKI v Volkswagen

As reported in this blog, the CJEU gave on 9 July 2020 its long-awaited judgment in VKI v Volkswagen (Case C-343/19). It ruled that the buyers of VW cars equipped with emissions test defeat devices can sue the manufacturer at the place where they had purchased the cars.

This result, which is broadly in line with the conclusions of the Advocate General, was hardly surprising. Nevertheless, a number of questions remain.

Where is the “Place of Purchase”?

The first and most urgent of these is what the CJEU means by the “place of purchase”. The Austrian court that submitted the reference for a preliminary ruling had identified three different places that could meet this description: (1) the place where the contract to purchase  the cars had been concluded, (2) the place where the purchase price had been paid, and (3) the place where the transfer or delivery of the vehicles had taken place (see para 10 of the judgment). In the dispute at hand, all three places happened to be located in the same district, but this will not be the case universally. In cases where they are different, which of these three places is the CJEU referring to?

What is the Role of the Place of Marketing?

The second question relates to the extent to which competent court will be foreseeable. The CJEU reasoned that the manufacturer must have anticipated that damage will occur at the place of purchase, as it knowingly contravened the statutory requirements imposed on it at this location (para 37). But this place of damage is foreseeable only on the assumption that VW will always market the vehicles in the country of purchase. That the place of acquisition and the place of marketing can differ is illustrated by Article 5(1)(b) Rome II Regulation.

Proximity of Tribunal or Protection of Tort Victims?

Third, one may harbour doubts about the CJEU’s argument that the tribunal at the place of purchase is best placed to carry out the assessment of damage (para 38). Proximity and the sound administration of justice would rather have suggested concentrating all cases in the court of the place of the manufacturer. The Court passed in silence over the main justification for locating jurisdiction over the tort in Austria; namely, the advantage to the tort victims in sparing them and their assignee the need to bring their claims in the home jurisdiction of the manufacturer, i.e. in Germany.

Purely Financial Loss or Not?

Fourth, it is unclear why the CJEU spent so much effort diffusing the referring court’s idea that the damage was “purely financial”. The Court of Justice was at great pains to make clear that the present case concerns material damage because the buyers received a vehicle with a defect (paras 32-35). Yet it did not draw any conclusions from this characterisation; in particular, it did not locate the damage at the place where the car had been used or registered. Instead, the Court abstracted from the vehicles and referred to the place of purchase, where the only loss incurred was…ehm…financial.

Parallel to Unfair Competition?

Fifth, it is a mystery why the CJEU – in holding that the damage occurred at the place of purchase for the purposes of Article 7 no 2 Brussels I bis Regulation – drew an analogy to the rules on unfair competition in Article 6(1) Rome II Regulation (para 39). The present case was not about unfair competition. Instead, the claimant brought a number of damages claims for defective vehicles.

Similarly, the situation was also quite different from the case of VKI v Amazon to which the Court of Justice referred. In that case, VKI had claimed in its own right when it applied for an injunction to restrain the use of unfair contract terms under the national law transposing Directive 2009/22/EC; whereas in the present case, it now brought a number of individual claims that had been assigned to it. It is true that the CJEU had ruled in VKI v Amazon that collective and individual claims must be treated under the same law. Yet this statement was made in the context of the validity of standard contract terms; it does not nearly have the same force with regard to damages claims. Even under the Court of Justice’s own standard in the new VW case, the latter will be judged under different laws and by different courts, depending on the country in which the vehicles were purchased.

An Alternative Proposal

The place of purchase that the CJEU identifies as the place where the damage occurred may be fortuitous, is subject to possible manipulation, and can hardly be determined in the case of e-commerce. It would have been more convincing to take into account other circumstances, such as the place of habitual residence of the purchasers, the place where they used the vehicle, and the place of marketing, as already suggested in this blog. Advocate General Sánchez Bordona had also suggested a combination of the place of purchase and the place of marketing. Only a holistic approach can properly balance the interests of the claimant and the defendant.

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