Dhe German Environmental Aid won a test case against the Federal Motor Transport Authority on Monday for restricted exhaust gas cleaning in diesel cars. The Schleswig Administrative Court ruled on the environmental organization’s complaint that the Federal Motor Transport Authority had wrongly approved a VW Golf model with the EA 189 engine. In 2016, the Flensburg authorities allowed the corresponding diesel vehicles to be put back on the road after a software update. The software partially switched off the exhaust gas cleaning in certain temperature ranges – with the result that more pollutants got into the air. The verdict on the so-called thermal windows is not yet final.
The German Environmental Aid described the judgment as a “breakthrough against illegal defeat devices”. The environmental organization announced that action would now be taken against all diesel vehicles with emissions levels Euro 5 and 6a+b from BMW, Mercedes-Benz, Volkswagen, Audi, Porsche and foreign diesel manufacturers. Lawsuits against 118 approvals from the Federal Motor Transport Authority for diesel vehicles with defeat devices from various car manufacturers are currently pending.
A spokeswoman for the Volkswagen Group, which was involved in the environmental aid proceedings, said after the verdict that VW’s assessment was unchanged: “The temperature-dependent exhaust gas recirculation in the vehicles concerned protects against immediate risks for the engine in the form of damage or accidents. These weigh so heavily that they can pose a concrete danger when operating the vehicle.” It would have been irresponsible, said the spokeswoman, to bring vehicles with such risks onto the market. We will now wait for the reasons for the judgment and then consider further steps.
“Until the final clarification, there is no threat of official shutdowns of vehicles or hardware retrofits because of the thermal window,” the spokeswoman continued. In addition to the appeal, the administrative court also allowed the jump revision. This means that, under certain conditions, the legal dispute can end up directly with the Federal Administrative Court.
Improvements by correcting the engine software
If the environmental aid has its way, the Federal Motor Transport Authority should accept the verdict of the Schleswig Administrative Court. Federal Transport Minister Volker Wissing (FDP) should give the relevant authority a corresponding instruction. Diesel cars with emission levels Euro 5 and 6 would have to be officially recalled. The vehicles would either have to be retrofitted with effective emission control technology at the expense of the manufacturer or shut down in return for compensation from the owners. According to environmental aid, millions of diesel vehicles, which are now older, are affected.
The case that has now been decided was about a Volkswagen Golf diesel in accordance with the Euro 5 emissions standard, which applied to the registration of all new vehicles from 2011 to August 2015. After the Volkswagen diesel engine scandal in 2015, some of the diesel engines were equipped with a software update developed by the manufacturers that removed some defeat devices. The inadequacy of the system was revealed in extensive tests by the Federal Motor Transport Authority in the laboratory and on the road. The Volkswagen Group tried to solve the problems with improvements, which were mainly done by correcting the engine software. The Federal Motor Transport Authority approved this procedure at the time. The effectiveness of the exhaust gas cleaning was expanded, but there remained “thermal windows” in which the exhaust gas cleaning only partially worked because the recirculation of exhaust gases into the engine was switched off.
In November 2022, the European Court of Justice (ECJ) had given guidelines for the judgment announced on Monday on the basis of the Schleswig Administrative Court. The ECJ confirmed that Deutsche Umwelthilfe was entitled to sue the Federal Motor Transport Authority. At that time, the judges of the ECJ had formulated very narrow requirements for the admissibility of “thermal windows”: The defeat device is only admissible in exceptional cases in order to exclude risks for the engine that are so serious that they pose a concrete danger when operating the vehicle. It must also be ensured that the exhaust gas cleaning system works properly for most of the year.