Volkswagen’s Diesel Defeat Device Declared Illegal

LUXEMBOURG – The European Court of Justice has ruled the software used by Volkswagen to control so-called diesel exhaust emissions defeat devices is illegal under the definition of European law.

In a decision that could have wide-ranging ramifications for the ongoing class-action lawsuits brought against Volkswagen as well as other European automakers including VW luxury brand Audi and Mercedes-Benz parent company Daimler, Europe’s highest court sided with purchasers of VW diesel vehicles who claim they were deceived into believing their vehicles produced significantly fewer emissions than they actually do in real-world driving conditions.

Following up on an initial ruling handed down in April 2020, the European Court of Justice said emission defeat devices cannot be justified because they “contribute to preventing the aging or clogging up of the engine.”

Volkswagen had argued in favor of a restrictive interpretation of the law limiting the scope of a defeat device to technologies and strategies operating only downstream from the engine after the production of exhaust gases.

However, the European Court of Justice ruled the law also should apply to “upstream” technology, which by definition includes software used to manipulate diesel exhaust emissions under test conditions.

Such software “must allow the engine to be protected against sudden and exceptional damage,” and “only those immediate risks of damage which give rise to a specific hazard when the vehicle is driven” should justify its use, the court said.

The ruling is expected to result in industrywide changes in how diesel exhaust emissions are controlled beyond Volkswagen and its various brands.

Software functions known as thermal windows, where the filtering of exhaust gas is lowered or shut down completely to protect engine components at a certain ambient temperature, are used by many European automakers.

It also creates the prospect of a wave of diesel-model recalls and more lawsuits against European automakers.

Volkswagen diesel vehicle owners already have brought multiple lawsuits against the German automaker claiming a loss of vehicle value after diesel emission manipulation was exposed by U.S. regulators in September 2015 in a scandal that so far has cost Volkswagen more than €30 billion ($36.7 billion).