Dutch Supreme Court Rules EVs Falling Short of Claimed Range are Non-conforming

In a landmark decision, the Supreme Court of the Netherlands has held that an electric vehicle (EV) that fails to achieve the advertised range under normal driving conditions does not conform to the contract of sale and can be returned by the buyer. This ruling may have significant implications for the automotive industry and consumer protection in the Netherlands where electric vehicles are becoming increasingly popular, but also subject to a growing number of disputes over performance.

The case involved a buyer who purchased an electric car that was claimed to have a range of 480 km according to the WLTP cycle, a standardized test procedure for measuring consumption and emissions. The buyer, however, was dissatisfied with the actual range of the car, which was only around 300 km in the winter, mainly driving on the highway. The buyer demanded that the seller either adjust the car to achieve the promised range or take it back and refund the purchase price. The seller refused, arguing that the range was dependent on various factors, such as driving style, route, weather, and battery condition, and that the buyer was aware of this disclaimer in the brochure of the electric car concerned. 

The Supreme Court sided with the buyer, finding that the difference between the advertised range and the actual range was so large (more than 35%) that the buyer was not obliged to expect it even with the disclaimer. In a previous instance, the Court of Appeal ruled that the seller was obliged to deliver a car with the properties the buyer could reasonably expect based on the contract, which included a significantly higher range than 300 km under normal driving conditions. The Court of Appeal concluded that the car was non-conforming and that the buyer had rightfully terminated the contract. The Supreme Court has upheld the ruling of the Court of Appeal. 

Commentary

This decision is important for several reasons. First, it shows that the Dutch courts are not reluctant to apply a strict standard of conformity for electric cars based on the reasonable expectations of the buyers and the representations of the sellers. 

Second, it demonstrates that the WLTP cycle, which is supposed to provide more realistic and comparable data on fuel consumption and emissions, may not reflect the actual performance of electric cars in practice. 

Third, it indicates that the sellers of electric cars may face more claims and litigation from dissatisfied buyers, who may seek to return their cars or claim damages for the reduced range. According to public information, there have been 630 cases of disputes over the range of EVs in the Netherlands, and this number is likely to increase as more electric cars are sold and consumers become aware of the ruling.

This decision also has implications for other jurisdictions, especially in the EU where the WLTP cycle is used. The Dutch Supreme Court's interpretation of the conformity requirement under article 7:17 of the Dutch Civil Code may influence other courts that apply similar provisions under EU Consumer Sales Directives, which to a great extent harmonise the rules on consumer protection in contracts for the sale of goods. The decision may also encourage more buyers of electric cars in other countries to challenge the advertised range and seek remedies from sellers.