Five years after the start of the exhaust gas fraud by Volkswagen, the European Court of Justice has declared a controversial software for the fining of exhaust gas values ​​in approval tests to be illegal. The verdict fell on Thursday (17. Dec. 2020) in Luxemburg. This decision could significantly strengthen the rights of owners of older diesel cars. (Case C – 696 / 18)

Wear and tear is not a justification A manufacturer must not install a defeat device that systematically improves the performance of the emissions control system during approval procedures, the court said. The reduction of wear and tear or pollution of the engine could not justify such a defeat device.

In September 2015 it was discovered that Volkswagen had manipulated emissions values ​​during approval tests with specially written software. The result was claims for damages in the billions and a wave of lawsuits that is still going on. The background to the ECJ proceedings is a case from France, where a manufacturer is being investigated for fraudulent misrepresentation. This is only referred to as “X” in the court records. However, Volkswagen has confirmed that it’s about its vehicles.

More nitrogen oxide than allowed At the core it was about the evaluation of the software that detects whether a car is being tested for approval tests in the laboratory. During the tests, both the exhaust gas recirculation to reduce harmful exhaust gas components during combustion and the exhaust gas aftertreatment work correctly. The pollutant values ​​are correct in the laboratory. On the other hand, exhaust gas recirculation and exhaust gas aftertreatment are throttled on the road. The effect is more engine power and less urea consumption. However, more nitrogen oxide is emitted in this way than permitted.

The ECJ essentially had two questions to clarify: Is the software a “defeat device”? These are fundamentally forbidden under EU law, but there are exceptions, among other things, if the defeat device is necessary “to protect the engine from damage or an accident” or “to guarantee the safe operation of the vehicle”. The second question was: Does this software fall under the exception?

The responsible Advocate General Eleanor Sharpston had clearly denied the latter question in her report on the case in the spring. The ECJ has now followed this assessment.

Chronology of the exhaust gas scandal (74 Pictures) middle September 2015: The US environmental protection agency EPA accuses the Volkswagen Group of producing diesel cars of the model years 2009 to 2015 Equipped with software that tricked the tests for US environmental regulations. The California Air Resources Board (CARB) came to similar findings. Both authorities send complaints to VW. (Pictured: Headquarters of the EPA in Washington DC)

(Image: EPA

) (fpi)