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Five years after the start of the VW diesel scandal, the European Court of Justice has outlawed the controversial software to fine exhaust gas values in approval tests. 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 is not authorized to install a deactivation device that systematically improves the performance of the emission control system during approval procedures, the court said. Reduced engine wear or contamination could not justify such a stopping 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 being investigated for fraudulent misrepresentation. This is only known as “X” in court records. However, Volkswagen has confirmed that it is their vehicles.
The ECJ had to clarify two issues
In essence, it was about evaluating the software that recognizes whether a car is being tested for approval testing in the lab. 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 then throttled. The effect is more engine power, but also more nitrogen oxide.
Basically, the ECJ had two questions to clarify: Is the software an “override device”? These are fundamentally prohibited under EU law, but there are exceptions, inter alia, if 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.
Subsequent proceedings before the BGH
In the afternoon, the Federal Court of Justice (BGH) commented for the first time on the limitation period for claims for damages against Volkswagen (Arizona. VI ZR 739/20).
The question is whether diesel owners affected by VW’s emissions scandal could demand compensation in 2019 or 2020. The plaintiff in the model case should probably walk away empty-handed. Because in his case it is indisputable that he was already clear in 2015 that his car was also equipped with illegal exhaust technology. His claim in the Stuttgart district court was only received in 2019.
The limitation period is usually three years and begins at the end of the year in which the claim arose and the interested party found out about it. The diesel scandal came to light in the fall of 2015. And the highest German civil judge should, in all likelihood, decide that the man can reasonably be expected to take legal action then. That was evident at the hearing on Monday. This would have expired at the end of 2018.
According to VW, about 9,000 proceedings are still pending, with no lawsuit brought until 2019 or 2020. Individual cases are stored differently. Because, unlike here, what the plaintiffs already knew in 2015 is often disputed. Therefore, the presiding judge has already announced a new hearing on the statute of limitations next year.
In September 2015, it was discovered that Volkswagen had manipulated the emission values during approval tests using special software.
