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Judgment in the NOx emissions litigation handed down on 14th November.

Posted: 21/11/2024

The first substantive trial in the NOx emissions took place over two weeks in October before Constable J, who handed down judgment on 14 November 2024.  The judgment considered the European type approval regime by which cars are brought to market.  

The Court was asked to decide whether the Claimants and/or the English Court were bound by various regulatory decisions (“KBA Decisions”) made by the competent vehicle type approval authority in Germany – the Kraftfahrt-Bundesamt (“KBA”).  Mercedes-Benz, supported by Volkswagen and Nissan, contended that the Court was bound by such decisions, meaning that the Claimants were unable to bring civil claims for damages in the English Courts unless or until those decisions were set aside in Germany.  

To resolve the dispute, the Court had to determine two main issues of German law: the regulatory content of the KBA Decisions, and whether they were binding in Germany.  The Court then had to determine what effect (if any) the KBA Decisions had as a matter of English and European law, taking into account both legislative changes to the type approval regime in 2018 and Brexit.

After hearing oral evidence from German law experts, the Court concluded that the regulatory content of the KBA Decisions was narrow and the KBA Decisions (aside from one subset of Decision) were not binding on the German civil courts, with Constable J essentially following the civil law jurisprudence of the Bundesgerichtshof (“BGH”), the highest German civil court.  Submissions that the Court should follow the jurisprudence of the administrative courts was rejected. 

The Court also found that, as a matter EU law, the KBA Decisions were not binding on the Claimants as they were not addressees of the decisions.  In reaching this conclusion, the Court considered in detail the jurisprudence of the CJEU in relation to the use of prohibited defeat devices; English authorities relating medicines regulation; the operation of private law rights relating to product liability; and the requirement of effective judicial protection.  

Gareth Shires of 2 Temple Gardens was instructed on behalf of the Claimants.

Authors

Gareth Shires

Call: 2007

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