When outside temperatures drop, the so-called thermal window in Volkswagen diesel cars reduces the cleaning of the exhaust gases. The German Environmental Aid is suing this software update before an administrative court in Schleswig-Holstein – with success.
In dealing with the diesel emissions scandal, the German Environmental Aid (DUH) prevailed with a lawsuit against the Federal Motor Transport Authority. The Schleswig-Holstein Administrative Court upheld the lawsuit, a court spokeswoman confirmed. “The lawsuit was essentially successful.” The court declared the approval notice for software updates for diesel engines by the Federal Motor Transport Authority to be illegal and overturned it, she added. The Flensburg registration authority must now take action. The court will comment on this in the reasons for the judgment.
Volkswagen explained that they wanted to wait for the written justification and then decide on further steps. A trip to the Higher Administrative Court or a jump revision before the Federal Administrative Court is conceivable. The process is about the use of so-called thermal windows in diesel cars. At low outside temperatures, these reduce the emission control. The cars then emit more pollutants.
The manufacturers argue that this is necessary to protect the engine. Before the administrative court in Schleswig, it was initially only about a model from Volkswagen, a VW Golf. The DUH regards the legal dispute as a model case for a number of other disputes with the Federal Motor Transport Authority (KBA). Should a decision be made against the KBA in these cases as well, Volkswagen could face another millionfold recall.
The German Environmental Aid welcomed the verdict: “Today is a good day for clean air and the health of everyone in Germany – and after seven years of unlawful camaraderie between the transport minister and the diesel companies, finally help for the customers cheated by the diesel cartel,” explained DUH boss Jürgen Resch.
He announced that he would now take action against other manufacturers, including BMW, Mercedes-Benz and the VW subsidiaries Porsche and Audi. Lawsuits against 118 approval notices are already pending, including those against foreign car manufacturers.
Lawyers representing potentially aggrieved diesel owners already sense big business. “This verdict initiates the emissions scandal 2.0. With today’s decision, the judges in Schleswig are sending a clear signal, also with a view to further lawsuits against the KBA and manufacturers such as Audi, Mercedes-Benz and Opel,” explained the lawyer Claus Goldenstein, whose law firm nach represents more than 50,000 consumers in connection with the emissions scandal.
Volkswagen explained that until the final clarification, there was no threat of official shutdowns of vehicles or hardware retrofits because of the thermal window. The KBA had approved the software updates after the VW diesel scandal. This eliminated the illegal defeat devices with which a car recognized whether it was on the test stand and only then complied with the emission limit values. However, the software updates contained additional shutdown devices, the so-called thermal windows.
The European Court of Justice (ECJ) ruled in November that environmental organizations such as Deutsche Umwelthilfe should be able to challenge type approval for vehicles that permitted a potentially prohibited defeat device. The court also ruled that a defeat device such as the thermal window may only be permitted if it is necessary to avoid a serious hazard to the engine and the safe operation of the vehicle.
The Schleswig-Holstein administrative court called the ECJ to clarify these questions. In previous judgments, the ECJ had stated that thermal windows only work properly at a charging temperature of 15 to 33 degrees and below 1000 meters altitude. Volkswagen emphasized that the exhaust gas recirculation of the vehicles affected by the procedure with EA 189 engines is only throttled from a temperature below ten degrees.
