18 September 2023 marks the eighth anniversary of the diesel scandal, one of the biggest environmental scandals of recent decades. Despite the far-reaching consequences, even after eight years, "Dieselgate" has not been fully dealt with, neither in all Member States nor in the institutions of the European Union. As a recent study by the Chamber of Labour shows, Austria is even more affected than originally assumed. Where does the processing of the scandal stand after eight years in the EU and the Member States?
The diesel scandal, which was uncovered in the USA in September 2015, began with the Volkswagen Group: In diesel cars fitted with an EA 189 engine, the exhaust gas purification system only worked on the test bench and was switched off in normal road operation ("VW switchover mode"). According to the European Court of Justice (ECJ), this violated EU regulations, and car owners were threatened with the withdrawal of their operating licences. VW tried to get out of the tight spot with a software update, but this was still illegal. The diesel scandal subsequently spread to most manufacturers of diesel cars, including Mercedes, Opel, Renault, Fiat and BMW. This clearly shows that it had not been just one “black sheep” but that it was common practice in the automotive industry until 2019. End consumers were deliberately deceived.
Current situation in Austria
In Austria, almost 800,000 cars have been recalled, and another 800,000 are under discussion. If a model judgement becomes legally binding in Germany, which deals with the question of whether exhaust gas purification is permanently throttled even under normal road conditions, for example by means of an inadmissible "thermal window", one fifth of all vehicles registered in Austria would be affected by the exhaust gas manipulation. The exhaust manipulation resulted in increased emissions of the exhaust gas nitrogen oxide (NOx), which is harmful to humans and the environment. According to the European Environment Agency, 38,000 premature deaths worldwide can be attributed to the increased emissions caused by the diesel scandal alone.
AK, the Consumer Information Association and the European Consumer Organisation (BEUC) are campaigning for a full investigation of the scandal. This means that defrauded consumers must be compensated. All defective cars, which are harmful to the environment and to people, must be fitted with an EU-conform exhaust system at the expense of the manufacturers. If this is not technically possible, other solutions are needed at the expense of the manufacturer, not the consumer.
Consequences in international and European comparison
In contrast to the Member States, in the USA, where the scandal was uncovered, very fast action by the US Environmental Protection Agency (EPA) could be observed. The affected consumers received compensation payments, the manipulated cars were recalled and VW had to pay billions in fines for the environmental damage caused.
At European level, the European Court of Justice (ECJ) ruled in December 2020 and July 2022 that VW's turn off devices are illegal, for example the "VW switch mode" and the illegal "thermal windows". These decisions were a huge success for consumers and environmentalists. According to another important decision of the ECJ, Member States are responsible under EU law for ensuring that a citizen has the option of suing a car manufacturer for damages if the car has an illegal turn off device. The responsibility therefore lies with the member states.
In Germany, the Federation of German Consumer Organisations (vzbz) already reached a settlement with VW in January 2020, which means that 240,000 German consumers will be compensated. June 2023 saw a turnaround in Germany jurisprudence: the German Federal Court of Justice (BGH) awarded damages for the first time - even without intent - because of the use of thermal windows; regional and higher regional courts received guidelines for diesel damage claims.
In Italy, Altroconsumo, the Italian consumer protection organisation, filed a lawsuit against VW, winning the case in July 2022. The consequences for VW Italia are serious; among other, they have to pay compensation to consumers and fines for fraud offences. Thus, apart from Germany, Italy is the only EU Member State where court decisions have already been made.
In the Netherlands, Spain, Portugal, Belgium, France, Slovenia and Austria, the cases have not yet been decided, and the courts and consumer protection organisations in these countries continue to spend a lot of time and money on the open cases. This also means that consumers still have to wait for compensation. In addition, there are still many heavily polluting cars on the road emitting large amounts of nitrogen oxides (NOx).
What is worrying, however, is the failure of the EU Commission and the responsible national authorities. Eight years after Dieselgate, fifteen percent of all registered VW vehicles in the EU are still driving on our roads with the notorious EA 189 in switchover mode.
AK demands on the EU
The European Commission must finally initiate a review process of car manufacturers with regard to diesel cars "displaying behavioural problems". This concerns in particular Article 9 (Verification of compliance by the Commission) in the Regulation on the approval and market surveillance of motor vehicles ((EU) 2018/858). If non-compliance is established, manufacturers would have to implement an EU-conform exhaust system (= retrofitting with catalytic converters). Legal action by injured car owners must be made easier and consumer protection organisations must be strengthened.
AK Vienna: Diesel scandal – Effects of exhaust manipulation in Diesel cars (only German)
AK Vienna: DIESELSKANDAL –UPDATE. Effects of exhaust manipulation in Diesel cars in Austria (only German)
AK Vienna: Diesel scandal: Manufacturers must take responsibility for damage to the environment and to car owners (only German)
BEUC: Seven years of Dieselgate: A never-ending story
EU Commission: Dieselgate