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ROUNDUP 2 / ECJ Report: Thermal windows in Volkswagen cars may be illegal | newsletter

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Luxembourg (dpa-AFX) – Volkswagen (VW) vz has been threatened with defeat by the European Court of Justice (ECJ) in a legal dispute over allegations of breach of contract defeat devices. In a report published on Thursday by Europe’s highest court, Solicitor General Athanasius Rantos argues that so-called thermal windows could represent an illegal closing device and therefore inconsistent with the contract. According to the ECJ, the program allowed higher nitrogen oxide emissions if the weather was cooler than 15 degrees or warmer than 33 degrees Celsius or the vehicle was driven above 1,000 metres.

The background to the report is three Austrian court proceedings in which cars were fitted with software that allowed more nitrogen oxide (NOx) emissions at certain outside temperatures and at a certain level. Judges at the European Court of Justice do not adhere to the reports, but they often follow them. A ruling can be expected in the coming months.

VW (Volkswagen (VW) vz) has argued that disputed thermal windows serve to protect the vehicle. According to the Wolfsburg-based company, these matters can continue to be justified if, for example, they prevent a failure that suddenly affects the operation of the engine itself and this cannot be prevented through regular maintenance.

The report now sets narrow limits to this kind of thinking. Because the controversy is also about whether the argument applies if the so-called EGR valve should not be protected by the thermal window directly, but rather the so-called EGR valve. The expert says national courts should clarify whether this is really necessary. In one case, the court actually investigated this question and came to the conclusion that it could not determine whether a defeat device was necessary. In this case, the European Court of Justice opinion states that it should be interpreted “narrowly” as to whether or not the accommodations are necessary.

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The report is unambiguous in that the thermal window does not represent actual driving conditions, because in Austria, Germany and other EU countries it has been on average well below 15°C in recent years, and cars at high altitudes are often more than 1,000 metres.

“If you follow the Solicitor General, countless diesel cars with illegal defeat devices will continue to drive on Europe’s roads,” commented Sven Giegold, MP and spokesman for the German Green Party in the European Parliament. His party colleague and deputy head of the Bundestag faction, Oliver Krecher, asserted that “the final ruling will not only affect Volkswagen”. All car manufacturers had refused to control emissions at outside temperatures below 15 degrees, which is still widely seen in older diesel cars with the Euro 5 emission standard. /mjm/DP/ngu