France

On the eve of the Second World War, the Sochaux company sold a dozen of its elegant car model 402. In 1959, Peugeot launched the 403 model with Indenor engine. Then, in 1960, came the 404 model. In 1960, the manufacturer offered a Peugeot 204 diesel model. Under the hood we find the smallest diesel in the world, a new aluminum block with the power of 40 bhp.

Citroen Type H is a subcompact car, and the brand did not offer a diesel model before its acquisition by Peugeot in 1976.

The Renault 20 diesel in 1979.

CEO’s Martin Winterkorn group reacts to the investigation by the US environmental agency and said he was “deeply sorry to have disappointed our customers and the public”, ensuring full cooperation with the authorities (La Voix du Nord, 22 September 2015).

The agreement is not globally binding. For President Obama, it was imperative to find a wording that did not make the outcome of the negotiations a binding treaty. The US President knew that it would never have been ratified by the Congress dominated by Republicans. Washington managed to achieve that the agreement does not render mandatory specific targets for reducing CO₂ emissions and the financing of the fight against climate change.

Verdevoye (2015).

Carbon dioxide, also called carbon or carbon dioxide gas.

General term for a group of highly reactive gases, all of which contain nitrogen and oxygen in varying amounts. The nitrogen oxide is a chemical compound consisting of oxygen and nitrogen.

This filter has a limited processing capacity, which forces it to periodically purge the nitrogen oxides that accumulate. The electronic computer determines the appropriate time to initiate regeneration transforming nitrogen and oxygen in nitrogen oxide. This chemical reaction demands more heat, obtained by a diesel injection for increasing the temperature of the exhaust gas. Purging the NO_x trap filter induces additional fuel consumption.

UTAC (Union Technique Automobile and Motorcycle Cycle) is working with French, British, Dutch, and Romanian authorities to the European Commission and the United Nations. It conducts tests for the type approval of vehicles and their equipment in accordance with regulations issued respectively by the EU and UNECE. The French authorities have also delegated to UTAC the monitoring of production conformity (COP) (Source: newspaper “20 minutes” of 1 October 2015).

The “Royal Commission” takes its name from the person who is in the lead. Ms Royal is the Minister of Environment, Energy and the Sea, in charge of International Relations on climate.

Bergerolle (2016).

115,000 Renault Captur vehicles are affected by the recall that started on July 2015.

It is noteworthy that in September 2015, a study by the German Federation of Motorists challenged car models manufactured by the Renault–Nissan Alliance (Nissan X-Trail 1.6 dCi, Renault Espace dCi 160 Energy, Renault Grand Scenic Energy dCi 130, and Renault Energy dCi 130 Kadjar) for alleged noncompliance with Euro 6 standards (Bonnebas V., Renault-Nissan, European champion pollution, Reporterre, 30 September 2015, available on https://​reporterre.​net/​Renault-Nissan-champion-d-Europe-de-la-pollution).

The ADA (Allgemeiner Deutscher Automobil-Club) is a federation of automobile clubs in Germany. With 18.73 million members in July 2013, it is the largest in Europe and the second worldwide (after the American Automobile Association).

CCFA, Lettre d’information, 1 July 2016 (www.ccfa.fr).

For example, before the outbreak of the scandal, in the first six months of 2015 the market grew by 6.1 %. During the same period, the overall results of the French car makers, with the exception of Peugeot, were down: Peugeot: +8.1 %, Citroën: −0.5 %, DS: −14.5 %, Renault: −6.8 %, Dacia: −7.5 %. During the same period, the results of VW were hardly better: +5.5 %. During the period immediately following the outbreak, the market was growing more significantly.

For example, in December 2015, the Volkswagen Group saw its sales fall 8.9 %, while Renault’s sales jumped 26.7 % and PSA Peugeot Citroen rose by only 7.7 %. Also, May was quite encouraging for the French industry. In May 2016, the market for new light-duty vehicles increased by 22.3 % on year and French carmakers were doing much better than their foreign competitors (French sales went up 29.3 %, while foreign manufacturers’ sales increased 14.9 %). In detail, in France, Dacia, the “low-cost brand” of Renault, saw its sales jump very high in a month (+39.3 %). Behind, Renault achieved the second best performance, with an increase of 32.6 %. While Citroën followed closely (+30 %), DS and Peugeot displayed smaller, but in any case exceptional, increases (+25.6 % and +23.1 % respectively).

Experts, according to Ms. Royal, have established that while Volkswagen vehicles exceed five times the regulatory limit of nitrogen dioxide, French cars exceed it from half to two times.

Chevalier and Maroselli (2015).

Ibid.

Ibid.

Faurecia has been awarded in Berlin on 1 June 2016 the “Volkswagen Group Award 2016,” an annual distinction awarded by the Volkswagen Group, which honors its best global suppliers (source: Auto Strategies International, 29 June 2016).

Chevalier and Maroselli (2015).

Ségolène Royal lance une enquête approfondie, Le Point, 22nd September 2015, available on http://​www.​lepoint.​fr/​economie/​affaire-volkswagen-segolene-royal-lance-une-enquete-approfondie-22-09-2015-1967067_​28.​php.

Chevalier and Maroselli (2015).

Chevalier and Maroselli (2015).

UTAC is the technical service designated by the French government to the European Commission for conducting approval tests, said the ministry.

Chevalier and Maroselli (2015).

At the commission Royal, Jacques Rivoal, the president of VW France, argued that Volkswagen models were polluting less than those of competitors. VW stressed the results of its five vehicles tested in France by UTAC. None of the tested models (Polo, Golf, Sharan, Tiguan, and the Audi Q3) had breached during road tests the NO_x emission ceiling (nitrogen dioxides) set by the board, as they did not exceed by more than five times the established standard. In the worst case, one of the models displayed exceeding 4.7 times the standard. The results were better for Polo (1.2 times) and for Sharan (0.9). The president argued that performances of many competitors were well above five times the allowed threshold.

Parliamentary Office for Evaluation of Scientific and Technological Choices, Senate Commission, 13 November 2015 (www.senat.fr).

On 1 October 2015, the government confirmed the execution of random tests in France on hundred diesel vehicles. Ségolène Royal announced the results in November. The tested Volkswagen vehicles exceeded five times the NO_X emission standard, a circumstance, according to the Minister of Ecology, that confirmed the cheating. The test on other manufacturers revealed that the emissions exceeded from a half to two times the standard, an excess that would correspond to the difference, already known, between tests on rollers and real driving tests.

CO₂ is the sole pollutant that comes into account for the calculation of the eco bonus criteria.

On 9 December 2015, Volkswagen published a statement. The group stated that cheating on CO₂ emissions was not ultimately confirmed. The figure of about 800,000 vehicles, originally published by Volkswagen Group, was denied. The differences in the figures related exclusively to nine models and represent only a few grams of CO₂ on average; they matched the cycle NEDC consumption increase (new European driving cycle) of about 0.1–0.2 l for 100 km. With an annual production of about 36,000 vehicles, these models accounted only for 0.5 % of the overall production volume of Volkswagen. Following significant internal investigations and comprehensive measurements, it was clear that for almost all models, actual CO₂ emissions corresponded to the values initially indicated. This meant that these vehicles could be marketed and sold without any limitations. The suspicion that the fuel consumption figures had been illegally modified was not confirmed. Internal measurements revealed only slight differences on nine models of Volkswagen (five marketed in France).

See Husson (2015).

Art. 313-1 Criminal Code.

Art. 223-1 Criminal Code, because of the severity of the pollution caused by the fraud.

Art. L213-1 Consumer Code.

Art. L12-1 Consumer Code (Loi 2008-776 of 4 August 2008).

Art. 441-1 Criminal Code.

Le figaro, 2nd October 2015.

www.clcv.org/actualites/la-clcv-porte-plainte-contre-volkswagen.html.

Chevalier and Maroselli (2016).

Art. L213-1 Consumer Code.

Art. L213-1, 1° et 3° Consumer Code.

Art. L213-1, 2° Consumer Code.

Cour de Cassation criminelle No. 84-91606.

This is what was found about erroneous information that the director of the Central Service for Protection against Ionizing Radiation had disseminated to the public about the safety of the radioactive cloud from Chernobyl (Cour de Cassation criminelle, No. 11-87531, JurisData No. 2012-026591; Dr. pén. 2013, comm. 28, note Robert J.H.; Comm. com. électr. 2013, comm. 7, note Lepage A.; D 2013, p. 218, note Lacroix C.).

Thus, although the average consumer does not know that foie gras should not contain more than two grams of sugar per kilogram of product, it is a deception to sell foie gras whose composition deviates from this administrative standard (Cour de Cassation criminelle, 30 March 1994: Bull. crim. 1994, No. 130; Dr. pén. 1994, comm. 164, note Robert J.H.).

Art. L213-2 Criminal Code, modified by the Loi No. 2014-344 of 17 March 2014, Art. 131.

Art. 441-1 Criminal Code.

Art. 441-12 Criminal Code.

Art. 131-38 and Arts. 131-39 Criminal Code.

Cour de Cassation commerciale, No. 10-27402.

Art. L120-1 II Consumer Code.

Art. L121-1 and Art. L121-1-1 Consumer Code.

Art. L122-11 and Art. L122-11-1 Consumer Code.

This concerns the material qualities, composition, accessories, origin, quantity, method and date of manufacture, conditions of use and the ability to use the properties and the expected results of use, as well as the results and the main characteristics of tests and controls carried out on the goods.

Art. 313-1 Criminal Code.

Art. 132-71 Criminal Code.

Art. 313-2 Criminal Code.

Art. L121-1 Consumer Code.

The Chambre d’Accusation (Indictment Division) was right when it confirmed the order of refusal of information about a complaint accusing the mayor of Paris to have directly exposed people to the immediate risk of death or injury by not adopting effective measures to mitigate the effects of air pollution, as the provisions relied upon by the claimants in support of their complaint did not impose on the mayor a specific duty of care and precaution (Cour de Cassation criminelle, No. 95-86205, Bull. crim. n° 274, Dr. pén. 1996. 265, obs. Véron, Rev. sc. crim. 1997. 106, obs. Mayaud, et 390, obs. Robert J.H.).

The invalidity that may be invoked is relative and is time-barred after a five-year term. In principle, the starting point of this term is the day of the execution of the contract. However, in this case, it would start to run only from the day when the fraud was discovered. A Court will be required to annul the contract.

Thus, the cancelation of a bilateral contract will result in reciprocal restitutions. The seller shall return the amount that he received. He will be held to pay interest on the sum if he has acted in bad faith, which would probably be the case here. The buyer shall restitute the car. When restitution is not possible (loss, destruction, sale), compensation will be by equivalent (monetary). Damages to the car will be eligible for compensation. However, due to the retroactive effect of the cancelation of the sale, the seller is in principle not entitled to an indemnity equal to the benefit to the purchaser for the use of the vehicle.

The good sold must comply with administrative standards: it seems logical, if not otherwise stated, to require the seller to deliver a good that is in good working conditions; this is a natural effect of the contract (Cod. Civ. Art. 1135). For example, the developer who delivers a land that does not meet the building standards (Cass. 3e civ. 17 January 1990, Bull. civ. III, no 26, D. 1991, somm. 168, obs. Tournafond O.), the seller who delivers a restaurant whose electrical installation does not meet the safety rules (Cass. com. 21 January 1992, Bull. civ. IV, no 33), the selling company that installs an alarm system with outdoor siren at a private home without making sure of obtaining the mandatory administrative authorization (rappr. Cass. 1re civ. 27 October 1981, Bull. civ. I, no 315, D. 1982, IR 532, obs. B. Audit), the vendor who delivers a stolen motor vehicle (Cass. 1re civ. 29 May 1996, Bull. civ. I, no 230, D. 1997, somm. 346, obs. Tournafond O.), or a vehicle not compliant with the provisions of the technical inspection (Cass. 1re civ. 29 January 2002, Bull. civ. I, n° 35) do not properly perform the duty to deliver to which they are contractually bound.

Art. L211-4 Consumer Code, confirmed in Articles L217-4 of Order No. 2016/304 of 14 March 2016.

This standard derives from the implementation into French law 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 and was inspired by the Vienna Convention of 11 April 1980 on the international sale of goods.

Art. L211-3 Consumer Code.

www.journalauto.com 29 April 16; de la Brosse (2016).

Ibid.

AFP 26th April 16. The French owners meeting within the ADD Association (Action Auto Defence) have decided to anticipate the fixing and to test their cars before and after upgrading, in partnership with the Union of independent car experts. A dozen of vehicles, belonging to the four affected brands (Volkswagen, Audi, Seat, and Skoda), will thus undergo a consumption test and an analysis of pollution by NO_x (nitrogen oxides) before and after the upgrading in order to assess the efficiency of the technical solution envisaged by VW and the effective preservation of technical and contractual standards.

Senate report on behalf of the Commission of Inquiry on the economic and financial costs of air pollution (Rapp. Sénat No. 610/2015, p. 59 ff.).

A first step in this direction can be found in the jurisprudence of the European Court of Human Rights that protects the environment through other fundamental rights such as the right to life (ECHR, Öneryildiz vs. Turquie, 18 June 2002), the right to a fair trial (ECHR, Zander vs. Sweden, 25 November 1993), the right to respect for private and family life (ECHR, Lopez-Astra vs. España, 9 December 1994; ECHR, Anna Maria Guerra vs. Italy, 19 February 1998; ECHR, Kyratos vs. Greece, 22 May 2003).

Cass. Civ. 3e, 19 Oct. 1978, D. 1979. 581. The Supreme Court recognized the right, in the case of the residents of a neighborhood committee grouped against air pollution caused by a coffee roasting plant, to seek compensation for the damages caused to the interests of the members of that committee.

The traditional approach of self-interest to act before a Court means that in principle a person may not defend the interests of others. This approach is based on the rule that “nul ne plaide par procureur,” according to which the proceedings in Court are not regulatory but result in a decision regarding a specific case. For this reason, the collective exercise of actions requesting compensation for several individual damages should be prohibited. This is the case before criminal courts and less rigorously before administrative courts. However, it is settled case law in civil law matters that the action of an association organized as a defense committee asking compensation for damages suffered individually by its members is admitted by the Court, provided that the statute of the association empowers the latter to act on behalf of its members. Thus, the law opens the way to the collectivization of civil actions, a necessity in cases of mass torts, as often environmental torts are.

Despite the potential benefits of collective proceedings for compensation of individual damages caused by environment torts, the recourse to such action is weakened by uncertainties about their conditions and effects. From the perspective of the conditions of admissibility of collective proceedings, there is uncertainty as to whether all members must evidence to have suffered injury or evidence of injury to one is sufficient. From the perspective of the effects of the action, in most cases the decisions do not engage in a case-by-case allocation of damages to each member, but damages are assessed in a very comprehensive and generic manner. The result is that the damages obtained by the association are often kept by it rather than distributed to members. These uncertainties and inconsistencies prevent this procedural tool to become an effective means for compensation in mass tort litigation. This form of civil action is not used for compensation of a large number of individual damages but is the most useful for groups not exceeding a few tens of victims.

Cass. civ. 2^ième 7 December 2006 n° 05-20297, Envir. 2007. Comm. 63; Civ. 2e, 16 November 2006, n° 05-19062; Envir. 2007. Comm. 63; Cass. Civ. 2^ième 5 October 2006, n° 05-17602, Bull. civ. II, n° 255; Cass. Civ. 3e, 8 June 2011, n° 10-15500, D. 2011. 2635, note Parance; Cass. civ. 3^ième 9 June 2010, n° 09-11738. D. 2010. Pan. 2468, obs. Trébulle; D. 2010. 2608, obs. Monge et Nesi.

Art. L142-3 Environmental Code enacted by the Loi of 2 February 1995.

The joint representation action is surrounded by extremely restrictive conditions that reduce its practical usefulness. It is reserved only for approved associations, and the approval procedure is quite complex. In addition, the need for prior identification of all victims makes this action almost useless for groups of up to several hundreds or thousands of victims. Above all, the possibility for environmental protection associations to seek the mandate of victims of environmental damage is excluded, which reduces the scope of the joint representation action with regard to environmental mass torts. Authorized associations do not have sufficient money to manage hundreds or thousands of claims and are reluctant to act, fearing to bear a heavy responsibility for errors in the management of the cases. For all these reasons, the number of joint representation actions exercised to date is insignificant.

Art. L423-1 Consumer Code.

Art. L411-1 Consumer Code.

Couberchet (2015).

Engines 1.2 and 2.0 will undergo a software update. The time necessary for this update will be less than half an hour.

Engines 1.6 will also undergo a software update. In addition, a “flow regulator” will be installed in front of the air mass flow meter. The time requested for the upgrading process will be less than one hour.