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LUXEMBOURG (dpa-AFX) – Five years after the start of the VW diesel scandal (Volkswagen (VW) vz), the European Court of Justice has ruled that a controversial software for calculating exhaust gas values in approval tests is illegal. The verdict came on Thursday in Luxembourg. The Greens in the Bundestag asked Transport Minister Andreas Scheuer (CSU) to give car owners the opportunity to have illegal defeat devices removed. From the point of view of Scheuer’s ministry, however, nothing has changed legally in Germany. (Case C-693/18)
The ECJ decided that a manufacturer must not install a defeat device that systematically improves the performance of the emissions control system during approval procedures. The reduction of wear and tear or soiling of the engine could not justify such a shutdown device.
In September 2015, it was discovered that Volkswagen had manipulated emissions values during approval tests using special software. The result was claims for damages in the billions and a wave of lawsuits. The background to the ECJ proceedings is a case from France, where a manufacturer is being investigated for fraudulent misrepresentation. Volkswagen has confirmed that it’s about its vehicles.
Before the ECJ, it was about the evaluation of the software that recognizes whether a car is being tested for approval tests in the laboratory. During the tests, the so-called exhaust gas recirculation, which reduces the emission of harmful nitrogen oxides, runs at full power. In this way, pollutant limit values are observed in the laboratory. In normal operation on the road, the exhaust gas recirculation is then throttled. The effect is more engine power, but also more nitrogen oxide, so that limit values are broken.
The ECJ essentially had two questions to answer: Is the software a “defeat device”? These are fundamentally prohibited under EU law, but there are exceptions, including when the defeat device is necessary “to protect the engine from damage or an accident” or “to ensure the safe operation of the vehicle”. So the second question was: does this software fall under the exception?
The ECJ answered the first question in the affirmative and interpreted the exception rule narrowly. In order to justify such a facility, it must be protected from “sudden and extraordinary harm”. So it is about “immediate risk of damage” that could lead to concrete danger while driving. The reasoning that wear or contamination of the engine is prevented is not sufficient.
The exact definition of the exceptions to “engine protection” should be particularly important for the industry. The Potsdam lawyer Claus Goldenstein, who specializes in lawsuits in the diesel scandal, declared that the exhaust gas scandal is now catching up with almost all vehicle manufacturers. “The automobile industry is threatened with record waves of recall and complaints,” said the lawyer. The ECJ ruling brings a lot of clarity. “For car owners affected, the chances have never been better of successfully enforcing claims for damages.”
Volkswagen, however, stated that the ECJ had “not made a general assessment of the admissibility of temperature-dependent control of the exhaust gas recirculation”. National authorities and courts would have to decide whether a “thermal window” is permissible in individual cases. “Customer lawsuits against manufacturers because of an allegedly inadmissible thermal window are unsuccessful and will remain unsuccessful,” explained the car company.
The Federal Ministry of Transport assured: “The interpretation of the ECJ corresponds to the German legal opinion. It confirms the previous application of the European regulations by the KBA and the procedure of the investigation committee ‘Volkswagen’.”
Green traffic expert Cemzdemir read the verdict quite differently. In the emissions scandal, Scheuer and his predecessor Alexander Dobrindt (CSU) “sided with those who cheated on customers,” he told the German press agency. “Federal Transport Minister Scheuer and his Federal Motor Transport Authority now have to look at the suspected cases again in the light of the judgment, and car owners must be given the opportunity to actually remove illegal defeat devices from their vehicles.” / Vsr / DP / stw