The German Environmental Aid (DUH) has achieved success in the legal dispute with the Federal Motor Transport Authority (KBA) in the matter of defeat devices for exhaust gas cleaning systems in diesel vehicles. The environmental organization had sued the KBA before the administrative court in Schleswig because they believed that so-called thermal windows were not permitted and that the shutdown devices approved by the KBA afterwards had to be removed.
The car manufacturer Volkswagen was involved in the process. The lawsuit was essentially successful, the presiding judge said in the verdict on Monday. The thermal windows in the approved scope are inadmissible. The decision was preceded by an oral hearing that lasted several hours.
The verdict is not yet legally binding. In addition to the appeal, a jump revision was also permitted. With a jump revision, the appeal instance can be skipped under certain conditions and the Federal Administrative Court can be involved directly.
Consequences for VW
After the verdict, Volkswagen AG emphasized that “until the final clarification, there is no threat of official shutdowns of vehicles or hardware retrofits because of the thermal window”. Likewise, according to the company, civil lawsuits “based on an alleged claim for damages based on the presence of a thermal window remain unsuccessful”.
Environmentalists and car manufacturers have been arguing about thermal windows for years. The software reduces the cleaning of the exhaust gases at lower temperatures, for example, so that the cars then emit more pollutants. In this specific case, it is about certain diesel versions of the VW Golf, which the KBA approved in 2008 and 2009. In 2016, the KBA then approved the temperature-dependent exhaust gas recirculation in the software updates.
In recent years, car manufacturers have often argued that defeat devices are necessary to protect the engine. According to case law, thermal windows are only permitted under very narrow conditions, for example if specific dangers have to be averted. The Schleswig judges were convinced that this was not the case in the case under discussion. The possible damages that have been described are “worst case” scenarios.
After the verdict was announced, Volkswagen announced that it wanted to wait for the written reasons for the court’s decision and to examine them carefully. Then further steps will be decided. “Our assessment remains unchanged: The temperature-dependent exhaust gas recirculation in the vehicles concerned protects against direct risks to the engine in the form of damage or accidents. These are so serious that they can pose a specific risk when operating the vehicle.”
From the manufacturer’s point of view, it would have been irresponsible to bring vehicles with such risks onto the market. “The KBA, as the market surveillance and approval authority, has always shared and confirmed this technical and regulatory assessment.”
Politics has to go too
DUH Federal Managing Director Jürgen Resch was “very satisfied and happy with the verdict”. However, he regrets that it took seven years to clarify the matter. Now it’s time for Federal Transport Minister Volker Wissing (FDP) to act quickly. Resch is calling on the minister, as the KBA’s top employer, “to ensure that all around ten million fraudulent diesels that are still on Germany’s roads are either shut down or retrofitted at the expense of the manufacturers”. The procedure currently being negotiated is one of around 120 that the DUH has initiated in the matter.
