VW emissions software tolerance brought before European court

27 September 2021

Volkswagen (VW) has been accused of emissions manipulation by an Advocate General of the European Court of Justice (ECJ). However, unlike the Dieselgate scandal, this latest case centres around the tolerances of software designed to reduce harmful emissions and protect engines.

Three cases have been brought to the court, two of which relate to a temperature window. Software installed in the electronic engine controller and exhaust gas recirculation (EGR) valve, which helps to ‘purify’ exhaust gases, is said to deactivate outside an ambient air temperature of below 15°C and above 33°C, and at driving altitude above 1,000m.

The three cases were brought by the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria), the Landesgericht Eisenstadt (Regional Court, Eisenstadt, Austria) and the Oberster Gerichtshof (Supreme Court, Austria). They decided to ask the ECJ whether such software constitutes a ‘defeat device’. Colder climates and higher altitudes in the country mean the operating tolerances are rarely reached.

According to the Advocate, outside this temperature window, per 10 °C, and above an altitude of 1,000m, per 250m of altitude, the rate of reduction decreases in a linear way down to zero, meaning that NOx emissions increase beyond the limit values laid down in Regulation No 715/2007.

‘Defeat device’

Advocate General Athanasios Rantos noted that in its judgment of 17 December 2020, the court ruled for the first time on the interpretation of a defeat device. This case concerned motor vehicles equipped with software intended to distort the results of type-approval tests for emissions of gaseous pollutants, in particular NOx. In that judgment, the court held that ‘a device which detects any parameter related to the conduct of the approval procedures provided for by Regulation No 715/2007 in order to improve the performance of the emission-control system during those procedures, and thus to obtain approval of the vehicle, constitutes a ‘defeat device’, even if such an improvement may also be observed, occasionally, under normal conditions of vehicle use.’

In that regard, Rantos stated the temperature window is not representative of real driving conditions since official statistics show that, in Austria and Germany, as in other European member states, the average temperatures for 2017-2019 were significantly lower than 15°C. In addition, given the topography of Austria and Germany, motor vehicles are very often driven there above an altitude of 1,000m.

He concluded from this that the software at issue reduces the effectiveness of the emission control system in normal vehicle operation and use, with the result that it constitutes a ‘defeat device’ within the meaning of Regulation No 715/2007.

Engine protection

According to the Advocate General, the regulation provides for ‘exceptions to the prohibition of defeat devices, including where the need for the device is justified in terms of protecting the engine against damage or accident, and for safe operation of the vehicle.

Yet the EU legislature has drawn a clear distinction between the engine and the pollution-control system, including the EGR system. Therefore, according to the Advocate General, ‘a defeat device which serves primarily to protect components such as the EGR valve, the EGR cooler and the diesel particulate filter, does not fall within the scope of the exception to the prohibition, since the functioning of those elements does not affect the protection of the engine.’

Therefore, Rantos suggests, the software is a ‘defeat device’.

Volkswagen’s response

In an email to Autovista24, VW responded to the claims of the Advocate General. They highlighted further comments made to the court, which justify the operating temperatures of the software.

‘According to the Advocate’s opinion, a thermal window may be justified if it is intended to prevent, for example, a malfunction of the EGR valve that has an abrupt effect on the operation of the engine itself, without these consequences being preventable by regular maintenance of the vehicle. This can be found in paragraph 125 of the opinion,’ a spokesperson for the carmaker stated.

‘According to the criteria established by the Advocate General in his opinion, the thermal windows used in VW Group vehicles remain permissible. Their purpose is to prevent sudden and immediate risks of damage to the engine.

‘So, the Advocate only said under which conditions a thermal window (in general, not only VW) is permissible. It did not say that the thermal window used by Volkswagen is impermissible. This is something the national courts have to decide. The GA did say that thermal windows (in general) are only permissible to a limited extent.’

No Dieselgate

What is clear from the Advocate General and the carmaker is that this case centres around the operating range of software designed to help the vehicle. It is not an attempt to fool regulators into believing a car is compliant with targets when it is not. Therefore, it is a very different case to Dieselgate.

The issue of altitude can relates especially to areas of Austria and Germany, while the temperature issue is more widespread, with most seeing outside temperatures drop below 15°C at certain times of the year.

A date has yet been set for the hearing to take place.