VW defeat devices were illegal in certain conditions, EU’s top court says

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BRUSSELS, July 14 (Reuters) – Software Volkswagen AG used to alter car emissions at certain temperatures constituted an illegal defeat device if run for most of the year, the EU’s top court said on Thursday in a ruling which the company said confirmed its software was allowed.

The Court of Justice of the European Union’s (CJEU) ruling is the latest step in a series of cases following the German carmaker’s 2015 admission of wrongdoing in the Dieselgate scandal.

“A device which ensures compliance with the NOx emission limits only in the temperature window does in principle constitute a defeat device,” the court said in a statement.

The ruling concerns software Volkswagen installed to control the recirculation of exhaust gases, to reduce emissions of nitrogen oxides (NOx) which can cause respiratory problems in humans.

The court said this software reduced the recirculation, eventually to zero, at temperatures outside of 15-33 Celsius, increasing NOx emissions to above legal EU limits.

The court said that temperatures below 15C are normal within the EU, and the defeat device had therefore degraded the emission controls under conditions of normal use.

If a device was strictly designed to avoid serious engine damage that could cause an accident, then this may not be illegal, the court said – but that even in this instance, the defeat device would be illegal if it operated most of the year under normal driving conditions.

“Volkswagen AG sees its legal position confirmed by the ruling of the European Court of Justice. According to the criteria the EU court has set in its ruling, the temperature windows used in the VW Group’s vehicles are permitted,” Volkswagen said in a statement.

“They protect from immediate risk to the motor in the form of damage or accidents. The risks are so serious that they represent a concrete danger when operating the vehicle,” it said.

Austrian consumers that bought affected vehicles from 2011 to 2013 are seeking to annul those sales contracts.

Austrian courts handling cases concerning the software should decide whether the devices were permitted in the specific instances the case concerns, the EU court said.

The court said that a seller may be forced to repair or replace goods that do not conform with its sales contract – and that failure to do this could entitle the consumer to a price reduction or the cancellation of their order.

(Reporting by Kate Abnett; additional reporting by Victoria Waldersee; editing by Jason Neely)

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