DUH victorious against second attempt to conceal emissions data

T&E’s German member DUH has won a historic victory over Volkswagen (VW) in the German courts. The judgement grants DUH (German Environmental Assistance) the right to criticise VW’s emissions data and make related statements after the carmaker had tried to silence DUH. The court said the freedom to express an opinion takes precedence over the economic interests of a company.

Following the ‘Dieselgate’ scandal, Germany’s vehicle licensing agency KBA ordered all VW models with EA189 engines to be recalled for a software update, in order to bring emissions down to permitted levels. VW carried out this update, and said its vehicles were thus compliant. However, DUH performed tests on a VW Golf 6 1.6 TDI (which is supposed to conform to Euro 5 air pollutant limits) both before and after the software update, and found the emissions of NOx had only been reduced from 964 mg/km to 602mg. The permitted maximum is 180mg.

On 14 March 2017, DUH issued a press statement giving these figures, concluding that the software update was clearly not fit for purpose, and the actions taken by the KBA following Dieselgate were not bringing emissions down to required levels. The DUH tests had been done on the road in real-life driving conditions; it is not yet clear whether the tests done by the KBA after the cars were recalled were in on-road or laboratory conditions. Laboratory tests frequently give far lower emissions readings than a car’s on-road performance.

VW immediately applied for an injunction to stop DUH publicising its findings and conclusions. It argued that only the 20-minute laboratory test procedure was necessary, and therefore DUH was unfairly damaging VW’s economic interests. The injunction preventing DUH from making 10 statements about its findings was granted on 3 April, and confirmed by another court on 31 May. But DUH appealed to a higher court, and last month won the case.

The court said that DUH had not made any false factual statements in its criticism of the high polluting emissions of the VW Golf diesel. In the 20-page judgement, DUH was freed to make its 10 statements about its findings, and to criticise the KBA for not doing enough to ensure polluting emissions limits were respected.

The decisive factor was the freedom to express an opinion based on accurate facts, which is enshrined in Germany’s Basic Law that governs all other laws. The judgement said both sides of the dispute accepted that DUH had done the research that had found the diesel Golf to emit 3.3 times the permitted level of NOx. ‘That means,’ the judgement says, ‘the facts from which the party under the injunction is drawing its conclusions are true.’

It added: ‘The freedom to express an opinion is one of the fundamental principles of a democratic society ... Imposing a legal sanction as a result of a considered utterance carries the danger that it will hamper or restrict public discussion, and thereby run counter to the function of the freedom to express an opinion enshrined in the Basic Law ... Ultimately the freedom of expression of the party under the injunction is impeded if it is prevented from making this utterance.’

DUH’s general manager Jürgen Resch said: ‘For more than seven months VW has prevented us from doing our consumer protection work, given that we weren’t allowed to publish our core findings. VW even called for us to receive a custodial sentence of six months, rising to two years if we did it again. With its decision, the court has strengthened not only us but also other NGOs working to bring environmental scandals to light.’

This is the second legal threat DUH has faced over its work exposing harmful emissions from cars. In December 2015, Daimler sought an injunction to prevent DUH publishing emissions readings from Daimler vehicles and commenting on them. Despite an injunction being granted, it was lifted after two months as two courts found in favour of DUH and against Daimler.