Volkswagen and other automakers risk potentially costly consumer claims after the European Union's top court said the use of software meant to protect car components from damage at certain temperatures could be illegal.
In a dispute stemming from the aftermath of the diesel scandal that roiled the German car giant, the EU Court of Justice on Thursday said there is no exemption from regulations for the use of software that changes pollutant gas emissions in cars based on the outside temperature.
While VW insists its use of so-called thermal windows is in line with the law, the ruling may open the door to lawsuits for compensation over sales contracts for affected cars.
"Software in diesel vehicles which reduces the effectiveness of the emission control system at normal temperatures during most of the year constitutes a prohibited 'defeat device,'" the EU court said. "Since such a vehicle default is not minor, rescission of the sale contract in respect of the vehicle is not, in principle, precluded."
The court in 2020 issued a key ruling in a dispute following from the diesel scandal that had engulfed VW, which said the use of defeat devices, which helped the automaker bypass diesel engine pollution tests, can’t be justified under the bloc's rules.
The ruling raised questions for car makers more broadly about the use of other software, because engine functions known as thermal windows -- that lower pollution controls when temperatures are low to protect components -- are used across the industry.
Despite Thursday’s ruling, VW continues to argue that its software remains legal in the way it’s used in its vehicles.
Following the criteria laid out by the EU court, "the thermal windows used in cars by VW remain permissible," VW said in a statement. "The effects of the ruling on VW are therefore minor" and civil damages claims "will continue to be unsuccessful."
The company argues that the exhaust gas re-circulation in its EA189 vehicles is active "most of the year," because it is only switched off if the outside temperature falls below 10 degrees Celsius.
However, the court said that the device at issue in Thursday’s case switches off the cleaning mechanism at temperatures below 15 degrees Celsius, making it illegal because it doesn’t work "most of the year."
"Even if the cars were considered roadworthy because of a retrofit, they do not correspond to what consumers were promised and paid good money for," said European consumer campaign group BEUC. "Consumer organizations across the EU are still in court against Volkswagen, and this judgment should help consumers to get compensation."
