What is a defeat device?

A defeat device is a mechanism that recognises when the vehicle is being tested and modifies the emission control system accordingly—the Emissions Regulation (EC) 715/2007, art 3(10) defines ‘defeat device’ as:

‘[…] any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use.’

This allows vehicles to achieve lower emissions levels during the laboratory test than in real driving conditions.

What is the extent of this dishonesty on the part of Volkswagen?

The use of defeat devices is explicitly prohibited by both European law and US federal laws.

The full extent of Volkswagen’s misconduct is not yet clear. What is clear so far is that:

• Volkswagen is recalling around 482,000 diesel vehicles sold in the US
• Volkswagen has admitted that 11 million cars worldwide are fitted with the software
• the German transport minister, Alexander Dobrindt, has confirmed that vehicles in Europe were also fitted with defeat software

We do not know how many of the 11 million cars equipped with defeat devices are in Europe, but the figure could be high. Since 2009 (when Volkswagen admitted it started using defeat devices) over 40 million diesel cars have been sold in Europe. So far, only the following information on the number of vehicles fitted with defeat devices in Europe has been released:

• 2.8 million vehicles in Germany
• potentially, up to one million cars in Italy
• 2.1 million Audis (Audi is part of the Volkswagen Group) affected worldwide, including 1.42 million in Western Europe

Could Volkswagen be subjected to investigations in other jurisdictions?

The prohibition of defeat devices is not unique to the US. International rules (for instance, Regulation No 83 of the Economic Commission for Europe of the United Nations (UN/ECE)—Uniform provisions concerning the approval of vehicles with regard to the emission of pollutants according to engine fuel requirements) and national rules usually contain similar constraints. The Emissions Regulation, art 5 expressly prohibits the use of defeat devices in the EU.

The legal responsibility to ensure car manufacturers comply with EU vehicle emissions regulations rests with the member states and, more precisely, with the national approval authorities.

Only models that comply with the relevant emission standards can be granted an approval certificate. National approval authorities oversee the laboratory test. They must also ensure that car manufacturers produce vehicles that conform to the certificate approved for each model. Finally, national approval authorities have the power to conduct investigations into the use of defeat devices.

Several EU member states (including Germany, France, Italy and the UK) have announced that they are launching investigations into whether car manufacturers manipulated emissions data in their country.

The Commission has called on all member states to investigate the use of defeat devices in Europe and report back, so as to ‘ensure that EU pollutant emission standards are scrupulously respected’.

Are there concerns such activities could have been adopted by other manufacturers?

According to Transport and Environment (Europe’s main environmental NGO campaigning on the environmental impacts of transport):

‘There is strong evidence to suggest that the same tricks used by VW in the US have been used in the EU. And not by VW alone, but by other manufactures too.’

Awareness that diesel vehicles underperform significantly in real driving conditions dates back many years (see, for instance, Luc Pelkmans, Patrick Debal, Comparison of on-road emissions with emissions measured on chassis dynamometer test cycles, Transportation Research Part D 11 (2006) 233–241. The International Council on Clean Transportation (ICCT) has measured real driving emissions and found that on-road emission levels of NOx are on average seven times higher than the certified emission limit for Euro 6 vehicles (see ICCT, Real-world exhaust emissions from modern diesel cars).

After reviewing independent studies covering more than 146 vehicles, Transport and Environment found that just one in ten cars meets the NOx emission limits on the road (see Transport and Environment, Don’t Breathe Here).

The use of defeat devices is just one of various techniques car manufacturers use to artificially lower the level of emissions during the laboratory tests. This includes both emissions of those pollutants which are harmful to human health (such as NOx) and carbon dioxide. In most cases these techniques take advantage of flexibilities and loopholes in the laboratory testing regime (see Transport and Environment, Don’t Breathe Here, pg 25).

Could Volkswagen be subject to any criminal charges if they were found to have defrauded consumers?

Volkswagen is already facing criminal investigations in the US, Germany and Italy.

Volkswagen may be exposed to criminal liability for the breach of the prohibition of use of defeat devices provided under the EU regulations. In particular, the Emissions Regulation requires member states to provide for penalties where manufacturers use defeat devices (Emissions Regulation, art 13). The details of the sanctions may differ among member states depending on the respective implementing rules.

Criminal liability may also arise under different types of legislation—such as consumer protection laws (in particular, the Unfair Commercial Practices Directive 2005/29/EC). The behaviour of Volkswagen may constitute one of the unfair practices under the Unfair Commercial Practices Directive, arts 6 and 7, such as:

• omitting or hiding material information (such as the use of a defeat device), or
• providing misleading information on the main characteristics of a product or the results of tests

Member states must introduce effective, proportionate and dissuasive penalties for the infringement of the prohibition of unfair commercial practices (Unfair Commercial Practices Directive, art 13). National implementing provisions will vary between member states.

What are the potential ongoing implications of this scandal?

In the short-term, the scandal is triggering investigations into the use of defeat devices in many member states. The Commission invited ‘all member states to carry out the necessary investigations at national level and report back’. These investigations are not limited to Volkswagen, but will include diesel vehicles placed on the European market by all the manufacturers.

National approval authorities have broad powers to take action against the use of defeat devices. In particular, the Motor Vehicle Approval Directive 2007/46/EC, art 30(1) provides that the national approval authority ultimately has the power to withdraw type-approval. The withdrawal of the license prevents the production and sale of the affected model across the EU.

Before taking the decision to withdraw a license, the approval authority may take other actions, such as requiring the car manufacturer to return non-compliant vehicles.

If the approval authority that discovers the use of a defeat device is not the one that granted the license, it cannot withdraw the approval certificate. In such cases, the approval authority may ask the member state that granted the license to take the necessary corrective actions.

In the most serious cases, member states can prohibit the circulation of vehicles that they consider to constitute a serious risk to road safety or to seriously harm the environment or public health (Motor Vehicle Approval Directive, art 29).

More generally, the Volkswagen scandal proves that the current testing and surveillance system is outdated and vulnerable to abuse by manufacturers. The implementation of the EU emission standards regulations is left to self-regulation by car manufacturers.

The surveillance system is based on a network of national approval authorities which are paid by car manufacturers and compete for business with approval authorities in other member states, so there is a clear conflict of interest.

ClientEarth has expressed concern about the fact that the current inquiry into the use of defeat devices launched by the UK government will be carried out by Vehicle Certification Agency (VCA). As an industry-funded government agency, it is Client Earth’s position that the VCA lacks the necessary independence to conduct a credible investigation.

It is therefore evident that, in the long term, fundamental reform at the European level is needed. In particular, the Commission and the member states should:

• bring forward the introduction of a rigorous and ambitious real driving testing procedure, and
• establish a pan-European enforcement agency equipped with adequate inspection and enforcement powers, including the power to issue fines against vehicle manufacturers

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.