Broader definition of ‘defeat device’ could mean more legal challenges

1 May 2020

The Court of Justice of the European Union (CJEU) has been asked to rule in a French prosecution case against Volkswagen (VW) for allegedly deceiving consumers about the emissions produced by their diesel vehicles. The ruling would oversee how wide a definition could be used to describe a ′defeat device’.

An adviser to the EU’s top court is advocating for a broader definition, asking for the technology used by VW to manipulate emissions tests to be considered illegal. If approved, this change could open the carmaker up to further lawsuits.

Upstream vs downstream

The Court is being asked to consider whether ′upstream’ technology should fall under the definition of a defeat device. VW had argued for a more restrictive interpretation, which would only see technology operating ′downstream’ as part of what constitutes a device.

As reported by Reuters, advocate general Eleanor Sharpston said the interpretation of a ′defeat device’ should include any device that can influence both upstream and downstream vehicle emissions during testing.

Using defeat devices to help a vehicle pass emissions tests is illegal under EU law. If the CJEU does alter this definition, VW and other carmakers could see further legal action taken against them.

Speaking with Reuters, VW said it did not expect the potential ruling to affect the legal proceedings. These focused on whether consumers had suffered financial damage, rather than a legal assessment of technology. ′This question no longer plays a role in ongoing proceedings,’ the carmaker said.

Exhaust gas recirculation

The case in France centres around an exhaust-gas recirculation (EGR) valve, which is capable of redirecting some exhaust gases back into the engines air supply, reducing final NOx emissions.

This component could be adjusted during testing with a device that allowed vehicles to meet emissions limits. But according to reports, this would allow the partial deactivation of the ERG under normal non-test conditions, leading to higher NOx emissions.

The court usually rules within two-to-four months of receiving an advisor’s opinion. In the majority of cases, judges do follow their advisors but are no bound to do so.

Emissions elsewhere

Late last month, German consumers were targeted by lawyers looking to dissuade them from accepting VW’s settlement. In February, the carmakers set aside €830 million for drivers in the country. Depending on the age and model of their vehicle, owners could expect between €1,350 and €6,250. This amount was considered ′far too low’ by Claus Goldenstein, head of the law firm Goldenstein & Partner.

Using online advertising campaigns, law firms have, therefore, been chasing existing VW claimants, offering thousands of euros in upfront compensation, alongside promises of winning even more from the carmaker. This could leave VW facing a fresh wave of individual claims from ′no-win, no-fee’ lawyers.

Meanwhile, in early April, the UK High Court found that emissions-testing software installed in the manufacturer’s vehicles did constitute unlawful ′defeat devices’ under EU rules. It was the court’s first major Dieselgate ruling, which followed a preliminary hearing in December 2019.

Mr Justice Waksman judged that the software did constitute a ′defeat device’. He called some of VW’s defences that the vehicles did not utilise such devices ′hopeless’, ′highly flawed’ and ′completely irrelevant’. ′Having therefore dismissed all of the defendants’ arguments, it must follow that the software function in issue in this case is indeed a defeat device because it falls within Article 3′, the Justice ruled.

This news out of France, Germany and the UK goes to show that while the automotive world continues to struggle with the impact of coronavirus, this doesn’t mean that older issues have disappeared. As the wheels of justice systems continue to turn, Dieselgate will continue to haunt carmakers.