Clean diesel car legend due to legally prescribed incorrect measurement?

How FIFA, Microsoft, WPs, BP and the Mafia are sued under the same law and pilloried through American glasses, Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm explain in a multi-part article.


The first part was about the “Racketeer Influenced and Corrupt Organizations Act”, a US federal law that makes this kind of jurisdiction possible. In the second part the Directors and Officers insurance is examined. The third part focused on the issue of premeditation – despite confession. In the fourth, risk management is a top priority. And the fifth now deals with “legally prescribed incorrect measurements”:


Existence of the clean diesel car legend due to legally prescribed incorrect measurement?

Since 1993, the legislator has required exhaust emission testing (AU) by devices that have been suitable since 1965 to determine smoke opacity, i.e. whether the diesel is smoking – but not to determine even more dangerous ultra-low particulate matter (Frontal21, broadcast of 25.11.2008). As early as the 1990s, the workshops for the AU tuned the engine to pass the test – and then again to ensure that the car drove optimally. Perhaps the Finance Minister should ask himself which diesel vehicles are currently incorrectly classified in the vehicle tax table?

The EU apparently does not plan more precise measurements until 2021, while in the USA the diesel car has now been generally put up for discussion in the media.

Clean diesel advertising has disappeared since the US Environmental Protection Agency imposed a $37,500 fine per diesel vehicle (with 482,000 vehicles already potentially up to more than $18 billion), particularly for violation of the Clean Air Act.

According to our understanding of the law, there may be higher values on the road: Because the standard values only have to be observed in defined standard operation, and even then not always. So if, for example, in high-load operation, at high coolant temperatures, among other things, the emission reduction is switched off in order to protect the engine and is increased at lower loads, this makes sense. This is not a specific manipulation for the test operation.


Admittedly, technicians could come up with the idea of programming the software specifically to achieve supposedly different goals in such a way that the best results are achieved in test operation. Properly done, it is actually hardly possible to prove this. When alleged experts speak of manipulation, this is mood swaying and difficult to prove.

It may be that this is an efficient behaviour for the purpose of best performance. It is possible that the operating condition-dependent emission reduction control in the USA follows the legal EU model, but the soft limits for manipulation have been deliberately overdrawn for test environments. Where appropriate, without being aware of the crossing of borders?

So it makes sense that while someone is stuck in the snow, the front wheels spin when accelerating, but the rear wheels don’t get out of place – and the person is not damaged by pollutants sucked in. A particularly thorough pollutant cleaning can be programmed for this. The same applies to switching off the air conditioning system to prevent exhaust fumes from being sucked in. If the controller encounters the same situation on the test bench, it will react in the same way, but not – which only particularly malicious people might suspect – specifically because of the test situation.


Directive 2001/27/EC of the EU Commission of 10 April 2001

An emission control strategy that technically modifies, switches on or off the emission control under certain operating conditions is generally permissible, technically necessary and desirable. On the other hand: The use of a defeat device or abnormal emission control strategies is prohibited.

However, a device that switches off the emission reduction under defined conditions is not yet a prohibited shutdown device for this reason alone. Stronger cleaning under certain conditions is also permitted during normal operation. This also protects the engine. In the EU, it is permitted to switch off or reduce emission reductions in certain operating situations, but to increase them in others where possible. All in all, a sensible use of control technology.


The car: EU law allows standard cut-off devices

Commission Directive 2001/27/EC of 10 April 2001 states

“Directive 1999/96/EC introduced new emission measurement cycles and provisions to prevent the use of defeat devices and abnormal emission control strategies. It is now appropriate to give greater effect to this Directive and to provide authorities with a tool to determine whether, under normal operating conditions, defeat devices or abnormal emission control strategies are used to manipulate engine performance in order to increase pollutant emissions.

“‘defeat device’ means a device which measures or senses operating variables (vehicle speed, engine speed, gear engaged, temperature, intake manifold vacuum or other) to activate, alter, delay or deactivate the operation of any part of the emission control system so as to reduce the effectiveness of the emission control system under normal operating conditions, unless the conditions under which this occurs are specifically provided for in the certification test procedures used “abnormal emission control strategy” means a strategy or measure which reduces the effectiveness of the emission control device under normal operating conditions to less than that required by the applicable emission test procedure […].” The use of a defeat device or abnormal emission control strategies is prohibited […].

6.1.4. In order to verify whether a strategy or measure is to be considered a defeat device as defined in section 2.28 or an abnormal emission control strategy as defined in section 2.30, the type-approval authority may require an additional NOx measurement using the procedure provided for in the ETC test cycle; this may be carried out at the same time as the type-approval test or the conformity of production test.


on Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


by courtesy of (published on 04.07.2017)



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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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