ECJ: Defeat devices


The European Union's top court ruled on 17 December 2020 that Volkswagen had broken the law by installing a so-called defeat device in its cars to cheat emissions tests and could not plead that it was merely to protect car engines.

The German carmaker admitted to having fitted millions of cars with the device, and it turned out that the use of the cheating software was not limited to the US. In Europe, it had been argued that the software could be justified by the fact that it helps to protect the engine over time. The ECJ ruled: “A manufacturer cannot install a defeat device which systematically improves, during approval procedures, the performance of the vehicle emission control system and thus obtain approval of the vehicle.” The case was examined by the ECJ after the Paris prosecutor's office launched a judicial enquiry into whether Volkswagen had deceived buyers of diesel vehicles fitted with the device.

The Court concluded that “software […] which alters the level of vehicle emissions in relation to the driving conditions which it detects and guarantees that emission limits are observed only when those conditions correspond to those applied during approval procedures constitutes a defeat device. In addition, that software constitutes a defeat device even if an improvement in the performance of the emission control system can be observed, on specific occasions, in normal conditions of vehicle use.” Such a device was only justified if it “allow[s] the engine to be protected against sudden and exceptional damage” and the “immediate risks of damage […] give rise to a specific hazard when the vehicle is driven.”

In a separate decision in summer 2020, the ECJ already ruled that EU consumers can sue in the country where they bought the vehicles equipped with the device.

Related link: ECJ press release.

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