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The verdict came in Luxembourg on Thursday. It could significantly strengthen the rights of owners of older diesel cars. (Case C-693/18)
A manufacturer cannot install a deactivation device that systematically improves the performance of the emission control system during the approval processes, the court said. Reducing engine wear or dirt cannot justify such a stop device.
In September 2015, it was discovered that Volkswagen had manipulated the emission values during approval tests using special software. The result was billions of claims for damages and a wave of lawsuits that still continues. The background to the ECJ procedure is a case from France where a manufacturer is investigated for fraudulent misrepresentation. This is only known as “X” in court records. However, Volkswagen has confirmed that it is their vehicles.
In essence, it was about evaluating software that recognizes whether a car is being tested in the lab for approval testing. During the tests, the so-called exhaust gas recirculation, which reduces the emission of harmful nitrogen oxides, operates at full power. In this way, the limit values for contaminants are observed in the laboratory. In normal operation, the exhaust gas recirculation is throttled. The effect is more engine power, but also more nitrogen oxide.
Basically, the ECJ had two questions to answer: Is the software an “override device”? These are fundamentally prohibited by EU law, but there are exceptions, even when the deactivation device is necessary “to protect the engine from damage or accidents” or “to ensure the safe operation of the vehicle”. So the second question was: is this software included in the exception?
Responsible General Counsel Eleanor Sharpston had clearly denied the latter question in her report on the case in the spring. The ECJ has now followed this assessment.
