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    William Maley

    As the Diesel Emits: Volkswagen's Emission Cheating May Not Be 'Illegal' In Europe

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      Volkswagen's Cheating Software Might Not Be Illegal In Europe Due To A Loophole

    After Volkswagen admitted that it used software to vary the amount of emissions being produced in their diesel vehicles, Volkswagen is using a legal loophole to provide a defense in Europe.

     

    In a letter sent last week to European regulators, Volkswagen Group Managing Director Paul Willis said that the company's cheat software might not be illegal under current European Union regulations. Crazy as might sound, there is a loophole that allows this.

     

    The New York Times reports that the European regulations have a massive loophole that could put Volkswagen in the clear. In fact, regulators knew about this loophole back in 2011.

     

    We'll let the New York Times explain the loophole.

     

    "The loophole lets carmakers change the performance settings of their engines before a pollution test. “A manufacturer could specify a special setting that is not normally used for everyday driving,” British regulators warned, according to minutes of a 2011 meeting in Geneva of officials across the region."

     

    Willis points this out in his letter, stating the automaker is considering "whether the software in question officially constituted a defeat device."

     

    Now this is only a small part of a number of problems with how Europe regulates how vehicles. Automakers can submit to testing in any of the 28 member states of EU and have those results recognized across the EU. Also, automakers can submit pre-production models and do various tweaks such as removing seats and taping up gaps for emission tests.

     

    "What we have developed is a phony system of testing where the member states [of the European Union] are in competition with each other for who can make it the most easy for the car manufacturers to pass the test," said Gerben-Jan Gerbrandy, a Dutch member of the European Parliament.

     

    Now the EU has the final say as to whether or not Volkswagen's cheating software is actually illegal or not. Lucia Caudet, a spokeswoman for the European Commission tells the Times that the governing body has "no formal view on whether” the software in question counts as "a 'defeat device' in the EU legal sense or not."

     

    We'll keep you updated on this.

     

    Source: New York Times

     

    Wills' letter is below.

     

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    It's Paul Willis, not Wills. As a case in fact, EU6 regulations do mention the possibility of on-road testing, so VW's assertions that the law only requires meeting emissision limits in the lab test is incorrect ("The Commission shall adopt measures for the implementation of this Article including measures in relation to the following: (a) tailpipe emissions, including test cycles, the use of portable emissions measurement systems for verifying the actual inuse emissions, verifying and limiting off-cycle emissions …"). EU member states can conduct on-road testing for testing emissions, right now. It's already in the regulation. Further, defeat strategies ("‘defeat strategy’ means an emission control strategy that reduces the effectiveness of the emission controls under ambient or engine operating conditions encountered either during normal vehicle operation or outside the type-approval test procedures;") such as that fitted to the EA189 are expliciity prohibited in the EU regulation ("The use of defeat strategies that reduce the effectiveness of emission control equipment shall be prohibited."). No "performance" loopholes. As for taping up gaps or removing seats, what would be the point? It's a stationary test, the car is not moving, it is not accelerating, so dynometer mass and resistance affects "acceleration", not vehicle mass. Further, type approval certification requires that vehicles be made and sold, as per the type approval. Change the tires or wheels, new test and type approval required. Change the mass, new type approval required. EU manufactures don't just certify a model with every engine and transmision combo — every tire and wheel combo offered with that engine and transmission requires separate CO2/fuel economy and emissions testing for type approval. Get into the tech specs in the more detailed product literature, and the details emerge — this is the fuel economy with 16" wheels, this is the different fuel economy for 17" whees etc. Now, of course these are pre-production models. They don't have type approval yet, so what else could they be? Once they have type approval, automakers have to build to that specification. Any variation requires a new type approval. This is why the 800,000 with CO2 irregularities had less visible "tweaks" to things such as lubricating oil the approved Technical Services would not notice (the kind of tricks dodgy second-hand car dealers are notorious for).

     

    P.S. A new international emission and fuel economy test has already been developed, based on global driving data. It comes into effect in Europe in 2017. The only thing still being worked out is a correlation factor between the old and new tests for assessing EU-mandated manufacturer fleet-CO2 reductions (the EU equivalent of progressively increasing CAFE requirements — the US just keeps using the old test for calculating CAFE, not the new test on your window sticker, but EU authorities don't want to double their test burden).

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