Porsche told EU not to publish diesel emission result

Last month, Porsche received a €535m fine in Germany for its part in the emissions cheating scandal that has become known as Dieselgate.

Newly-revealed documents showed that the Joint Research Centre (JRC), the commission's research body, did not have to protect Porsche - but it decided to anyway.

The case goes back to May 2018, when EUobserver requested the results of all emissions tests the JRC had carried out since September 2015 - the month when Porsche's parent company, Volkswagen Group, admitted to having committed emissions fraud.

The JRC released several dozen documents over a period of nine weeks, but refused access to one document relating to an anonymised vehicle.

"This document contains results of testing activities, which are jointly owned by the European Union and a car manufacturer," said a letter signed by JRC director-general Vladimir Sucha, dated 7 August 2018.

"The JRC consulted the manufacturer and the latter objected to disclosure of the results," added Sucha.

He did not specify that the car manufacturer was Porsche.

EUobserver used its rights under the EU's access to documents regulation to appeal the decision.

'Jointly-owned' test results?

While waiting for a response from the European Commission's secretariat-general, responsible for dealing with such appeals, EUobserver asked the commission spokespersons' service to comment on the peculiar fact that emissions test results could be "jointly owned" by the EU and a private company.

The commission did not want to comment on the record, but did make an official available to provide some explanation off-record.

"The JRC has signed an agreement with the third party which includes a confidentiality clause," this official said in an email.

"This is a common practice when a private individual or organisation agrees to share their data or equipment to enable us to carry out experiments," the contact added.

"In the field of emissions, it is often the case that a car manufacturer will agree to loan us a specific vehicle model - especially those that are not easy to find on the market - so the JRC can carry out measurements. In that sense, the results are 'jointly owned': the commission has access to the results and so does the manufacturer who loaned the vehicle for the pilot tests," the explanation went.

When the European Commission's secretariat-general finally released the documents, it emerged that the model tested was a Porsche Cayenne. In hindsight, the argument that vehicles are sometimes "not easy to find" now appears weak in this case: the Cayenne is one of Porsche's most popular models.

Six-month delay

The commission secretariat-general was supposed to handle the appeal by 28 September 2018, but did not do so until more than six months later, in a 3 April 2019 letter.

It explained - which the JRC's Sucha originally had not done - why the car manufacturer had opposed publication of the test results.

The company had argued to the JRC that "the information contained in the test report and the vehicle loan agreement was directly linked with (...) pending court proceedings".

The commission secretariat-general however said that these reasons were not strong enough, and that the documents would be made public.

It did so four weeks later, after having given Porsche the opportunity to appeal the decision before the EU's highest court - which the German carmaker apparently did not do.

The test results were in line with previous tests of emission cheaters. When the laboratory conditions were exactly the same as defined in EU law, the Porsche Cayenne tested by the JRC stayed below the legal limit of 80 milligrammes of nitrogen oxide per kilometre (mg/km).

But when the test was carried out with a hot engine, emissions shot up to 146 mg/km, for which there is no explanation in physics.

When performing the test while the ambient temperature of the laboratory was 10C, instead of 30C, emissions were even higher: 194 mg/km.

Porsche dodges questions

Porsche did not reply to EUobserver questions about the company's request to JRC to keep the papers confidential.

Instead, a Porsche spokesman gave general information about the recall campaign of Porsche vehicles for which "irregularities were discovered in the engine management software".

"Official recalls have been issued for two models in total since November 2015 in Europe: the Cayenne 3.0-litre V6 diesel (Euro 6) and the Macan3.0-litre V6 diesel (Euro 6)," the spokesman said.

"We have already modified more than 18,500 of the affected 21,000 Cayenne models with 3-litre V6 diesel engines (Euro 6) and more than 34,000 of the affected 53,400 Macan 3-litre V6 diesel engines (Euro 6) across Europe," he added.

Confidential

The loan agreement between Porsche and the JRC has also been released.

It confirms that the results were supposed to be "treated by the parties as confidential information" and that they would be anonymised.

However, the agreement also shows that the confidentiality clause could be overruled, when information is requested via a law on access to documents.

"All provisions of this agreement apply without prejudice to the applicable law, including without limitation to the law governing the right of public access to documents," the agreement said.

"Neither party can claim any damages or breach of this agreement in cases where the other party acts according to its obligations resulting from the law governing the right of public access to documents", as long as the other party is duly informed.

Yet the JRC nevertheless decided to agree with Porsche's objection to publication.

It is not the first example showing the JRC's weak position towards car companies.

According to email exchanges from 2011 and 2013, seen by EUobserver in 2016, JRC had to ask Volkswagen permission to share test results with EU member states - who are in charge of enforcement.

Volkswagen gave JRC permission on condition the data was anonymised.

From research to watchdog

At the moment, the JRC is a research institute, not an enforcement agency.

However, it will be given policing powers from next year, when a new regulation will apply.

Following the Dieselgate affair, the EU institutions agreed that the commission should have the power to do emissions tests from an enforcement point of view - rather than for scientific purposes, as has been the case.