Thermal window in the EA288 engine.
In the context of a procedure concerning the reversal of a Volkswagen with an EA288, the Ellwangen Regional Court has given a clear indication to the car manufacturers (LG Ellwangen decision of November 30, 2020, ref. no. 3 O 254/20).
In the decision, the court takes the view that a switch-off device which significantly restricts exhaust gas recirculation even at normal outside temperatures is, in view of the applicable EC regulation, no one can be assessed as a permissible defeat device within the meaning of Article 5 paragraph 2 sentence 2 of Regulation (EC) No. 715/2007 based on a reasonable interpretation of the law.
The regulation states that the technical measures taken by the manufacturer must ensure that the exhaust and evaporative emissions throughout the life of a vehicle are normal terms of use effective It can therefore only be interpreted to mean that a shutdown device that is activated at normal temperatures cannot be permitted.
According to the court, Volkswagen AG, which probably already had an excellent legal department at that time, could therefore not claim that, according to the legal situation as it was known at the time, an opposite, albeit incorrect, interpretation would have been justifiable.
Such an interpretation, which ultimately puts the consumer at risk of purchasing a vehicle which could be affected by a withdrawal from the market in the future, could not have been justifiable, given the lack of transparency in the type-approval procedure.
At the time the EA288 engine type was placed on the market, those responsible at Volkswagen could not have claimed that the thermal window served to protect the engine.
This would mean that Volkswagen would not have fulfilled the legislative mandate to "equip the vehicle so that the components that affect emissions are designed, manufactured and assembled in such a way that the vehicle complies with this regulation and its implementing measures under normal operating conditions." Instead, the car manufacturer would have faked this as part of the type approval procedure.
If a car manufacturer produces a vehicle that only complies with the specified limits by means of a device that has to be switched off most of the time or has its functionality restricted in order not to damage the engine, then the manufacturer has not produced an engine that meets the requirements of Article 5 paragraph 1 of the EC regulation, the decision states.
The manufacturer can demonstrate his good faith in the admissibility of a defeat device by providing evidence of the disclosure of this device in the context of the type-approval procedure.
We are curious to see whether Wolfsburg will allow itself to be carried away by this or whether an alternative – economic – solution will emerge in this process.
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