17th Oct 2021

VW emissions software was illegal, top EU lawyer says

  • According to Volkswagen, the shutdown was a protection mechanism to protect the engine from breakdowns, but the ECJ advocate general rejected their defence (Photo: Volkswagen AG)
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Volkswagen used software to alter emissions illegally, the European advocate-general, Athanasios Rantos, said in a legal opinion on Thursday (23 September).

The lawyer analysed three computer programs used by the German automobile giant. Following earlier cases at the Austrian Supreme Court, he found that these devices could detect when the car would be subjected to testing.

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The device would distort parameters like outside temperatures to show a lower amount of pollutants, especially NOx.

"A purification valve that recirculates NOx and thereby lowers emissions switched off the noxious gas, automatically shut down below 15 degrees celsius or above 1,000 meters," said the lawyer in his legal opinion for the European Court of Justice (ECJ) - the highest legal body in the EU.

According to Volkswagen, the shutdown was a protection mechanism to protect the engine from breakdowns, but the lawyer did not accept their defence.

Because this thermal window was not representative of actual driving conditions (as the average temperature in Austria and Germany and many other countries is well below 15 degrees celsius), Rantos concluded that "the computer programme in question reduces the effectiveness of the emission control system" and does, in fact, constitute a defeat device.

The lawyer stated that the device does not in fact protect the engine, but serves primarily to protect car components. Therefore "the diesel particulate filter does not fall within the scope of the exception, since the functioning of those elements does not affect the protection of the engine."

"In addition, given the relief [topography] of Austria and Germany, motor vehicles often circulate there above 1,000 meters of altitude," added Rantos.

His finding is the latest in a series of legal setbacks for Volkswagen, which began in 2015 when US Environmental Protection Agency detected the cheat devices in some of their vehicles.

According to the German carmaker, the 'Dieselgate' scandal has cost the company €31.3bn. Earlier this year, Volkswagen boss Martin Winterkorn avoided a criminal trial ​for alleged market manipulation as part of the automaker's emissions scandal, but was ordered to pay a record sum of around €11m to his former employer in a separate trial.

In the past the car company has said it expects to pay a further €1.2bn in 2021 for further settlements.

The advocate general's legal opinion is not binding, but the CJEU often follows it. The final judgement is expected to be delivered later this year.

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