Dusseldorf Seven and a half years after the diesel scandal became known, the administrative court in Schleswig-Holstein caused a stir. The judges ruled that a software update from Volkswagen approved by the Federal Motor Transport Authority (KBA) was inadmissible.
In 2016, the KBA allowed VW to let the manipulated diesel vehicles back on the road – although illegal defeat devices such as the “thermal window” were still in place. As a result, cars emit more nitrogen oxides than permitted outside of a certain temperature range in which the exhaust gas cleaning technology works without restrictions. Thermal windows are not only used at Volkswagen, but throughout the entire industry.
The Handelsblatt has compiled the most important questions and answers resulting from the judgement.
In essence, the court dealt with the admissibility of thermal windows in diesel cars. When the outside temperature is too low or too high according to the specification, these reduce exhaust gas cleaning and increase pollutant emissions accordingly. Exhaust gas cleaning usually only works between about 20 and 30 degrees Celsius without restrictions. VW argues that the use of thermal windows is necessary to protect the engines.
Before the administrative court in Schleswig, it was specifically about a VW Golf. The car was equipped with an EA 189 diesel engine. This is the notorious engine that started the diesel scandal on September 19, 2015.
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At that time, the US Environmental Protection Agency (EPA) announced that VW was using an illegal defeat device. The emission control was switched off as soon as the car was no longer on the test bench but was driving on the road.
Around eleven million vehicles were affected worldwide. In Germany, the KBA ordered a recall but accepted a software update that should fix things. The problem: In 2016, the KBA allowed VW to put the corresponding diesel vehicles back on the road – although there was still a thermal window.
What does the German Environmental Aid say about the decision?
The German Environmental Aid (DUH) celebrates the decision as a great success. “It is a precedent because it can be directly transferred to all other vehicles with temperature-controlled defeat devices,” Remo Klinger told Handelsblatt. The lawyer regularly represents the DUH in court.
From the point of view of the judiciary, what was decisive was the technical possibilities for cleaning the exhaust gases when the type approval was granted. And this technology existed, because the nitrogen oxides could have been neutralized even before 2012 with the urea Adblue as an additive.
This solution could make diesel cleaner, but it is expensive for manufacturers.
(Photo: imago images/Manfred Segerer)
However, such a solution was too expensive for many manufacturers. Klinger and the DUH do not accept that car manufacturers try to justify the use of thermal windows with engine protection.
How are KBA and Volkswagen reacting to the decision?
When asked, the KBA stated that the thermal windows used by VW were found to be permissible for reasons of engine protection and the operational safety of the vehicles, especially at low temperatures. The office wants to examine the decision of the court and then decide on the further procedure.
The verdict surprised the car company. In Wolfsburg it was assumed that the court would not question the thermal windows. It is therefore very likely that the car manufacturer will go to the next higher authority. Officially, it is said from Wolfsburg about the verdict that one will first wait for the written justification. After that, VW wants to “decide on further steps”.
What is VW’s position?
The Wolfsburg emphasize that the current verdict in Schleswig affects just under 90,000 Golf copies from the years 2008 and 2009. Across Europe, around 8.5 million diesel cars were affected by the exhaust gas manipulations, of which Germany accounts for around 2.5 million.
According to the group, the thermal windows have become smaller in vehicles produced later, so modern diesel cars meet the emission standards even in frost. However, the DUH will hardly be satisfied with this.
Are millions of vehicles really being called back to the workshops?
this is open The DUH wants to bring further lawsuits against Volkswagen and other car manufacturers before the administrative court in Schleswig. The current dispute at VW involves cars that are around 15 years old on average.
A large proportion of these vehicles are probably no longer in operation or have been sold to other countries as used vehicles. From Volkswagen’s point of view, retrofitting the older models is difficult for technical reasons. But the legal attacks will also be directed against more modern vehicles in which thermal windows are used.
What does the verdict mean for other automakers?
From the point of view of the DUH, it is time to recall all diesel vehicles with thermal windows. The car manufacturers would have to be obliged to no longer use thermal windows. Otherwise it would be necessary to pull the cars out of circulation and compensate the customers.
Volkswagen assumes that the majority of the vehicles affected by the court decision are no longer in operation or on the road in Europe.
(Photo: dpa)
The DUH has already announced that it will take action against all other diesels with emission levels Euro 5, 6a and 6b from BMW, Mercedes-Benz, Volkswagen, Audi, Porsche and foreign diesel manufacturers from Italy and France, for example. According to the DUH, lawsuits against 118 approval notices for cars from various manufacturers are already pending.
BMW did not comment on the verdict. Basically, for BMW, a “deliberate, targeted approach to the inadmissible manipulation of exhaust emissions is not acceptable”. A spokesman for Mercedes-Benz also declined to comment.
What’s next?
The Administrative Court allowed both an appeal and a direct appeal to the Federal Administrative Court. Process observers expect that the KBA and VW will take action against the verdict. It would be a long time before it could become legally binding.
In the short term, however, there is another decision that will provide orientation. On March 21, the European Court of Justice (ECJ) decides in a lawsuit filed by a Mercedes customer whether vehicle owners have claims for damages due to the use of an impermissible defeat device if the vehicle manufacturer only acted negligently.
In his opinion of the summer of 2022, the ECJ Advocate General made it clear that he considered negligence to be sufficient to justify claims for damages. The court often follows the advice of its Advocate General.
What should diesel drivers do and what do consumer advocates advise?
Drivers of diesel cars with thermal windows do not have to take immediate action. Because the judge’s decision does not oblige customers to retrofit the affected cars, nor is there a threat of shutdowns in the near future.
Since it may still be some time before the judgment becomes final, customers should follow further developments closely. This also applies with regard to possible limitation periods for possible claims for damages. These run until the end of 2026 at the latest.
Ralf Stoll from the law firm Dr. Stoll & Sauer is convinced that the prospects for customers are better than ever. “The verdict of the Schleswig Administrative Court is part of the latest environmentally and consumer-friendly development in the emissions scandal. In addition, it is of fundamental importance, because corresponding judgments can now also be expected in comparable proceedings,” says Stoll. “First of all, we advise waiting for a ruling by the ECJ in March. If this also turns out to be consumer-friendly, there is a lot to be said for a successful claim for damages.”
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