Press release: 1 May 2020

Trouble for automakers as EU top court advisor condemns defeat devices

An EU top court advisor has issued a critical opinion on the legality of defeat devices, the latest development in the first Dieselgate case to reach the Court of Justice of the European Union. Her conclusions have increased the likelihood of mass recalls across the EU, say environmental lawyers ClientEarth.

Advocate General Sharpston said that software used to lower vehicle emissions to within legal limits during laboratory tests can only be used in extremely limited cases – namely to prevent real danger to the engine when the vehicle is on the road. However, car manufacturers cannot use defeat devices with the objective of reducing maintenance work on vehicles and related costs.

The guiding opinion comes in advance of the final decision of the EU’s top court in a case against Volkswagen, when the court will clarify for the first time what the law says about when defeat devices can and cannot be used.

In the wake of the Dieselgate scandal, it has been revealed that most car manufacturers have fitted diesel vehicles with dubious defeat devices, resulting in real driving emissions being several times higher than legal limits.

Reacting to the news, ClientEarth lawyer Ugo Taddei said: “This case is set to be a game-changer, providing much needed legal certainty on the use of defeat devices.

“Years after the Dieselgate scandal, there are still millions of cars with defeat devices on our roads, exposing people to lung-damaging pollutants at far higher levels than the law allows. This case spells trouble for any automaker who has fitted car models with dubious defeat devices and as yet failed to clean up their mess. Car manufacturers must immediately arrange fixes for all vehicles they have sold that are equipped with defeat devices.

“It’s also up to national approval authorities to keep the car industry on the straight and narrow and immediately order mandatory recalls of all the vehicles with illegally high emissions of pollutants. This guiding opinion certainly makes mass recalls across the EU more likely.”


Notes to editors:

Read the Advocate General’s opinion here.

The Advocate General is an independent advisor to the CJEU. Their opinions are generally heavily influential in the outcome of a case.

Extracts referred to in the press release:

“Advocate General Sharpston concludes that the concept of ‘emission control system’ includes technologies, strategies and mechanical or software-based components which allow emissions (including NOx) to be reduced upstream, like the ERG system, as well as those which treat them and reduce them downstream, after their formation.”

“The Advocate General therefore takes the view that only immediate risks of damage which affect the reliability of the engine and cause that vehicle to present a real danger when it is driven may justify the presence of a defeat device.”

“Advocate General Sharpston thus considers that the objective of slowing down the aging or the clogging-up of the engine does not justify the use of a defeat device.”

UK drivers were successful in the first round of a class action suit against VW and others earlier this month, with the judge’s preliminary ruling confirming the use of defeat devices. Meanwhile, the German Federal Court of Justice (BGH) will hear a diesel emissions scandal case for the first time next week.

In 2015, campaigners revealed that cars produced by Volkswagen emitted far more nitrogen oxides in standard road driving than was recorded in test conditions. Volkswagen admitted that 11 million of its vehicles were equipped with software that was used to cheat on emissions tests. The ensuing scandal engulfed the whole car industry.

According to recent estimates by Transport & Environment, 51 million diesels across the EU are still emitting three or more times the EU legal limit of nitrogen dioxide.

About ClientEarth

ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.