The use of a device to enhance the functioning of the gas pollutant emission control system during type-approval tests of diesel vehicles is prohibited by European Union law, Advocate General Eleanor Sharpston said in her Opinion delivered on Thursday 30 April (Case C-693/18).
Vehicle manufacturer X is alleged to have built and placed on the market in France vehicles equipped with software that distorts the results of laboratory approval tests measuring nitrogen oxide (NOx) emissions.
In this case, first reported by the press, the manufacturer allegedly misled its customers about the performance of diesel vehicles and the checks carried out before they were placed on the market. These vehicles were equipped with technology (an EGR valve) to reduce final NOx emissions by redirecting a portion of the exhaust gases to the engine air intake.
Before being brought to market, these vehicles were tested in the laboratory following the predefined NEDC cycle according to various technical parameters (temperature, speed, etc.) These type-approval tests verify compliance with NOx emissions limits in accordance with the Regulation (715/2007) on type-approval of motor vehicles (Euro 5 and 6).
A technical assessment carried out as part of a judicial information procedure initiated by the Paris Public Prosecutor’s Office concluded that the vehicles in question had a device that detects the phases of the type-approval tests and adapts the operation of the EGR system accordingly to comply with the regulatory ceiling on emissions.
Conversely, when vehicles are travelling in normal conditions, the device in question partially disables the EGR system. According to the expert, an EGR system functioning like those observed during the tests would lead to a reduction of NOx emissions of up to 50% in real traffic. Because of faster clogging, engine maintenance would need to be more frequent and expensive.
The Court is being asked to clarify the definition and scope of the concepts of “emission control system” and “defeat device” in the Regulation (715/2007).
In her conclusions presented today, Advocate General Sharpston analyses the concept of “emission control system” in the context of the objectives of protecting the environment and improving air quality in the EU.
Contrary to Company X’s restrictive position, she is of the opinion that this concept includes technologies, mechanical parts, and software that enable an upstream reduction of polluting gas emissions, such as the EGR system, as well as those that enable the reduction of polluting gas emissions downstream after their formation.
According to Mrs Sharpston, a device that detects any parameter related to the certification process in order to activate or up-modulate the operation of an emission control system during testing for vehicle certification is a “defeat device”, even if the up-modulation of the emission control system’s operation is ad hoc.
Furthermore, the Advocate General notes that EU law exceptionally permits defeat devices if they protect the engine from damage or allow the safe operation of the vehicle. However, this exception must be interpreted strictly, she believes. According to her, only the immediate risk of damage affecting engine reliability and leading to concrete danger during driving justifies the presence of a defeat device.
Since car manufacturers must ensure that their vehicles comply with emission limits under normal operating conditions, Mrs Sharpston concludes that the use of a defeat device to deactivate an emission control system is not justified when the sole purpose is to protect the engine against ageing or clogging over time, otherwise the regulation would be deprived of its useful effect.
It will be up to the French court to establish, in light of the conclusions in the expert’s report, whether or not the mechanism in question falls within the scope of this exception.
See the conclusions (in French): https://bit.ly/2KS4tCB (Original version in French by Mathieu Bion)