BRUSSELS, Sept 23 (Reuters) - Software Volkswagen AG
used to alter pollutant emissions based on the
temperature and altitude is illegal unless it prevents
potentially dangerous sudden damage to the engine, an adviser to
the EU's top court said on Thursday.
The finding, if confirmed by the Court of Justice of the
European Union (CJEU), is the latest step in a series of cases
following the German carmaker's 2015 admission of wrongdoing in
the Dieselgate scandal.
Judges at the CJEU typically follow opinions of the advocate
general, but are not bound to.
Volkswagen said the temperature windows used in VW group
vehicles was permissible because their their purpose was to
prevent sudden and immediate risks of damage to the engine.
The case, brought by consumers in Austria, centers on
software controlling a valve that recirculates exhaust gases
from the engine outlet. This reduces emissions of nitrogen
oxides (NOx), which can cause respiratory problems in humans.
The software shuts off the valve at temperatures outside the
range of 15-33 Celsius (59-91 F) and at altitudes above 1,000
meters (3,280 feet), increasing NOx emissions. The consumers
contend this is a prohibited defeat device, for which they
should be compensated.
In his legal opinion, CJEU advocate general Athanasios
Rantos noted the court ruled last December that
emissions-rigging software was illegal, even if it contributed
to preventing aging or clogging up of the engine.
Rantos said the temperature window was not representative of
real driving conditions in Austria and neighboring Germany, as
the average temperature was significantly lower than 15 C.
Vehicles would also often be driven above 1,000 meters.
The software was a "defeat device," he said, and could only
be justified if a malfunctioning of the valve had a sudden
impact on the engine, such as a power failure while being
driven, even if the vehicle undergoes regular maintenance.
The advocate general said that it was for the Austrian
courts to determine where the defeat device was necessary.
He added that one court had said this was impossible to do.
(Reporting by Philip Blenkinsop in Brussels and Christoph
Steitz in Frankfurt; editing by Barbara Lewis)