VW defeat devices were illegal in certain conditions, EU’s top court says

By Kate Abnett and Victoria Waldersee

BRUSSELS (Reuters) -Volkswagen AG (VOWG_p.DE) software that altered car emissions constituted an illegal defeat device in certain driving conditions, the EU’s top court ruled on Thursday, while the automaker said the ruling confirmed its software was legal.

The Court of Justice of the European Union’s (CJEU) ruling is the latest in a series of court cases across multiple countries since Volkswagen’s 2015 admission of wrongdoing in the Dieselgate scandal.

It has cost the carmaker more than 32 billion euros ($32.12 billion) in vehicle refits, fines and legal costs so far.

“A device which ensures compliance with the NOx emission limits only in the temperature window does in principle constitute a defeat device,” the court said in a statement.

The ruling concerns software Volkswagen installed to control the recirculation of exhaust gases which the court said reduced recirculation eventually to zero at temperatures outside of 15-33 Celsius, increasing NOx emissions above legal EU limits.

The court said that temperatures below 15C are normal within the EU, and the defeat device had therefore degraded the emission controls under conditions of normal use.

If a device was designed to avoid serious engine damage that could cause an accident, this may not be illegal, the court said – but even then, the defeat device would be illegal if it operated most of the year under normal driving conditions.

Volkswagen said the temperature window of the vehicle models in question began at an external temperature of 10 Celsius, rather than 15 as the court stated, and that recirculation of exhaust gases remained 100% active even below this temperature.

“Volkswagen AG considers its legal position to be confirmed by the CJEU ruling: According to the criteria established by the CJEU in its judgement, the thermal windows used in VW Group vehicles remain permissible,” Volkswagen said in a statement.

“They protect against immediate risks to the engine in the form of damage or accident. The risks are so serious that they give rise to a specific hazard when operating the vehicle,” it said.

Austrian consumers that bought affected vehicles from 2011 to 2013 are seeking to annul those sales contracts.

Austrian courts handling cases concerning the software should decide whether the devices were permitted in the specific instances the case concerns, the EU court said, with the seller potentially forced to repair or replace goods that do not conform with its sales contract.

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(Reporting by Kate Abnett, Victoria Waldersee; editing by Jason Neely)