Diesel scandal: VW cars: ECJ report sees illegal thermal windows

Volkswagen is threatened with a defeat at the European Court of Justice (ECJ) in the legal dispute over allegedly breach of contract defeat devices.

In an opinion published on Thursday by the highest European court, Advocate General Athanasios Rantos takes the view that so-called thermal windows can represent a shutdown device that is illegal and therefore contrary to the contract. According to the ECJ, the software allowed higher nitrogen oxide emissions if it was colder than 15 or warmer than 33 degrees Celsius or the car was driven at an altitude of more than 1000 meters.

VW had argued that these were used to protect the vehicle. According to the Wolfsburg-based company, a thermal window can still be justified if, for example, it prevents a malfunction that has an abrupt effect on the operation of the engine itself and that cannot be prevented through regular maintenance. A defeat device would then be permissible, which, according to Volkswagen, is also the case in the present proceedings.

Specifically, it concerns three proceedings before Austrian courts in which cars were equipped with software that allows more nitrogen oxide (NOx) emissions at certain outside temperatures and at a certain level.

Because this thermal window is not representative of the actual driving conditions, as in Austria and Germany as well as other EU countries it has been on average well below 15 degrees Celsius in recent years and cars are often driven at altitudes of more than 1000 meters, concludes Advocate General Rantos that these thermal windows represented a shutdown device. “If you follow the Advocate General, countless diesel cars with illegal defeat devices continue to drive on Europe’s roads,” said Sven Giegold, MP and spokesman for the German Greens in the European Parliament.

The judges at the ECJ are not bound by the reports, but they often follow them. A judgment can be expected in the coming months.