The Dutch owner of a VW Golf TDI bought in 2010 has to be paid a compensation fee of €3 000 because his car contained fraudulent software. It’s the first judgment in court out of four cases introduced by the Stichting Volkswagen Group Diesel Efficiency (VGDES) and the consumer organization Consumentenbond.

Meanwhile, European law has clarified what to understand with fraudulent software. According to the NGO ICCT, some 19 million diesel cars still driving around in Europe are polluting far more than admitted.

Buying time

The lawyer of the two Dutch organizations mentioned above, Jurjen Lemstra, says that the original claim was a complete refund of the car (bought for €33 000 at the time), but the judge didn’t follow this reasoning and estimated that the damage done was situated around €3 000. “This is a very important first step,” says Lemstra. “With this first official verdict, other VW diesel owners with fraud software can claim indemnities.”

Several Dutch organizations have already sued Volkswagen for its illegal software in their diesel cars. Car Claim, for example, won already a case in 2021, but VW appealed. According to the manufacturer, the owners didn’t suffer any financial damage due to their car emitting more toxic gases than officially indicated.

Lemstra points out that the whole Volkswagen strategy in this matter is one of buying time in most European countries. In the US, Volkswagen has already paid billions of compensations to customers; in Germany also, some customers have received compensation. But in many other European countries, the carmaker is dragging its feet.

According to VW’s lawyer in this case, Jeroen van Hezewijk, the situation in the Netherlands is not comparable to that in the US because of a slight difference in car specifications and different legislation.

Amicable settlement

An estimated 150 000 to 180 000 VW clients have cars with fraud software under the hood. Initially, VW tried to establish that solely the Amsterdam court could rule in this matter. This was undone by the aforementioned court ruling in Haarlem.

The consumer organization Consumentenbond now hopes that Volkswagen is ready to settle for an amicable agreement. “We try to increase the pressure on Volkswagen,” says Joyce Donat from the Consumentenbond. “Of course, Volkswagen could lead some 150 000 different law cases, but we prefer to go to the negotiation table with them.”

19 million ‘dieselgate’ cars

Where many managers throughout the car industry would like to ban ‘dieselgate’ from their vocabulary and agenda, the term is alive and kicking. According to new research from the NGO International Council on Clean Transporation (ICCT), some 19 million cars still driving on European roads emit far more NOx than permitted (three to four times the legal maximum). We’re talking about some 200 different models produced by different car manufacturers.

‘Suspicious’ NOx emission levels were found in 77%-100% of tests and vehicle averages, indicating the likely use of a prohibited defeat device. Of 1 400 total tests conducted under controlled settings by government authorities, 85% of tests on Euro 5 vehicles and 77% of tests on pre-RDE Euro 6 vehicles exceed the suspicious emissions threshold.

Similar rates are observed for government tests conducted under real-world conditions. Results from independent real-world testing show that up to 100% of vehicle model averages exceed the suspicious threshold.

‘Extreme’ NOx emissions were found in 40%-75% of tests and vehicle averages, indicating that a prohibited defeat device is almost certainly present. Approximately 42% of the 1 400 official government tests under controlled settings exceed the extreme threshold.

Real-world testing by government authorities and independent bodies shows similar or higher rates of extreme emissions. Remote sensing data show that approximately 75% of engine family averages exceed the extreme threshold.

“It is difficult to dispute what is a large amount of analyzed data and testing collected from multiple sources, says Peter Mock, ICCT’s Europe Managing Director. “All of them point in the same direction. After the CJEU rulings, these results present a solid body of evidence for authorities to investigate and potentially take corrective action to address health risks posed by European diesel cars driving on our roads,” he adds.

Defeat devices

Important in this context are the new Court of Justice of the European Union (CJEU) rulings about so-called defeat devices. A defeat device is a software code installed in the vehicle to alter or deactivate the emissions control system under certain operating conditions. The use of defeat devices was at the center of the 2015 dieselgate scandal.

In recent rulings, the CJEU clarified the definition of a prohibited defeat device in a series of recent rulings, limiting their use to when “only immediate risks of damage” are present. In its analysis, the ICCT identified 66 vehicle models that used calibration strategies that are now considered prohibited defeat devices based on the latest CJEU rulings because they function during normal driving conditions.

Most of these vehicle models (48) use emission calibration strategies that alter or deactivate the emissions control system in low ambient temperatures, which are typical within the EU.

“Since the dieselgate scandal, only some manufacturers have performed recalls and updates of diesel cars in Europe. The impact of these updates is unclear as many vehicles have not been retested, or the testing results have not been released publicly,” says the ICCT press release.

“Air pollution continues to be the biggest environmental health hazard in Europe. Diesel vehicles are a major contributor, largely due to high NO_x emissions. In the EU region, 35 400 premature deaths were linked to on-road diesel vehicle emissions in 2015 or 14% of all air pollution-related premature deaths,” the release adds.

EU law mandates that Member States have the responsibility to investigate cases of potential defeat devices and to require manufacturers to take corrective action if a prohibited defeat device is found. The European car manufacturers don’t seem at the end of the so-called dieselgate scandal yet. Undoubtedly, they should have preferred otherwise.