EU Magistrate Shoots Down Volkswagen Defense in Emissions Case

The Volkswagen headquarters building in Wolfsburg, Germany. (Swen Pfoertner/dpa via AP)

LUXEMBOURG (CN) — A magistrate at the Europe Union’s top court said Thursday that Volkswagen cannot argue it was protecting car engines by using a device to manipulate emissions data.  

The nonbinding opinion of Advocate General Eleanor Sharpston for the European Court of Justice is the latest legal defeat for the Germany car manufacturer in the scandal, known as Dieselgate, that broke in 2014. 

“Indeed, it is the responsibility of vehicle manufacturers to ensure that they observe the limits set by emission legislation throughout their normal operation,” Sharpston wrote in the opinion, which is only available in French.

The Luxembourg-based court is not holding hearings in light of Covid-19 prevention measures, but is continuing to issue opinions on cases it heard before the pandemic struck. 

Volkswagen is referred to as “company X” in the court proceedings, but it’s widely known that the maker of the iconic Beetle was discovered to be using so-called defeat devices in its diesel vehicles by the U.S. Environmental Protection Agency. 

Defeat devices distort or disable emission controls during driving but not during testing. In the case before the EU’s highest court, an investigation by the Paris Prosecutor’s Office found that if emission controls in place during testing were used in normal conditions, the vehicles would have produced 50% less nitrogen oxide emissions but would have required more maintenance. 

The French prosecutor opened an investigation into whether Volkswagen cars sold in France used defeat devices and if such devices violated an EU regulation covering passenger and commercial vehicles sold in the 27-member political and economic union. 

EU rules generally prohibit the use of defeat devices, but they can be allowed in exceptional circumstances. In a 30-page submission, Volkswagen argued that concerns over engine clogging, shown to increase with emission controls, was a sufficient reason to use defeat devices in the diesel vehicles. 

In her lengthy opinion, however, Sharpston concluded that “only the immediate risks of damage which affect the reliability of the engine and which generate a concrete danger while driving the vehicle are such as to justify the presence of an invalidation device.” She noted that even Volkswagen’s expert analysis concluded that emission control was not destructive to the engine. 

The automaker also argued that its method employed to circumvent emission standards didn’t constitute an “emission control system,” as that can only be located in the exhaust system itself. Rather, Volkswagen installed software in its cars that used an exhaust gas recirculation when the car was undergoing testing but turned it off when the car was being driven normally. 

“I do not share the analysis of company X,” Sharpston wrote, concluding that EU emissions regulations also cover software-based components and strategies.

Thursday’s opinion marks the second time this month an adviser to the Court of Justice has ruled against Volkswagen. On April 2, another magistrate found that an Austria-based consumer rights group can sue Volkswagen in Austrian national court over defective cars sold during the automaker’s emissions scandal even though the company is headquartered in Germany. 

This emissions software was used in some 11 million cars worldwide. The U.S. Environmental Protection Agency ordered the recall of nearly half a million Volkswagen cars sold in the United States in 2015. 

Though not required, rulings from the Court of Justice often follow the same legal reasoning as advisory opinions. A ruling is expected later this year, though that may be delayed as a result of the Covid-19 pandemic.  

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