Groundbreaking judgment: ECJ: Nice exhaust software is illegal


Trend-setting judgment
ECJ: Exhaust gas software is illegal

Hui in the laboratory, ugh on the street: embellished emission test values ​​were what triggered the diesel scandal five years ago. The European Court of Justice is now making a landmark ruling that is likely to be of great importance for the entire industry.

Five years after the start of the VW diesel scandal, the European Court of Justice (ECJ) has declared controversial software for the fining of exhaust gas values ​​in approval tests to be illegal. The verdict was given in Luxembourg. It could significantly strengthen the rights of owners of older diesel cars. (Case C-693/18)

A manufacturer is not allowed to 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 cut-off device. After Volkswagen, other manufacturers must increasingly expect claims for damages.

The ECJ thus endorsed the opinion of the Advocate General, who had declared such exhaust gas cleaning techniques to be inadmissible in her closing argument at the end of April. Exceptionally, these could only be approved if the device was necessary to protect the engine from damage or an accident.

However, the judgment does not mean an automatic claim to compensation. Diesel owners have a more secure legal basis to sue them in their home countries. What the prospects for it are cannot currently be assessed.

In September 2015, it was discovered that Volkswagen had manipulated emissions values ​​during approval tests using special 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.

In essence, it was about evaluating the software that recognizes whether a car is being tested in the laboratory for approval tests. During the tests, the so-called exhaust gas recirculation, which reduces the emission of harmful nitrogen oxides, runs at full power. In this way, pollutant limit values ​​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.

The ECJ now made it clear that it is a "shutdown device" despite the software control. 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". A defeat device can only be justified in order to avoid "immediate risks of damage", "which lead to a specific danger during operation of the vehicle".

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