What is Fiat accused of in the Fiat Ducato emissions scandal?
Last updated: April 2023
For some time now, Fiat (FCA Italy S.p.A., an Italian subsidiary of Stellantis, hereafter just Fiat) has been facing accusations of cheating on some of its engines in terms of emissions compliance. As a result, Fiat has now joined the ranks of major automotive companies causing turmoil and negative headlines as part of the diesel emissions scandal.
The question therefore arises as to what Fiat is specifically being accused of. What is behind the accusation that engines were put into circulation that exceeded the permitted limits many times over? In particular, how was it possible for the necessary type approvals to be granted despite such poor exhaust emission values?
The answer is similar to the cases of the other groups linked to the emissions scandal; some engines installed in Fiat vehicles are believed to contain software developed by Fiat with improper defeat devices .
Defeat devices are devices that influence exhaust gas purification. According to Regulation (EC) No. 715/2007, the installation of such defeat devices is generally not permitted in the European Union and is only allowed in certain exceptional cases specified in the regulation. It is assumed that the Fiat Ducato-based base vehicles (more on affected engines here) contain a so-called timer(cf. Brenner expert opinion, press release of the Frankfurt am Main public prosecutor's office dated July 22, 2020).
This is intended to reduce the exhaust gas recirculation rate to almost zero after approx. 22 minutes or after a defined number of cycles and partially deactivate the regeneration of the NOx storage catalytic converter(see LG Dessau judgment dated April 14, 2022, not yet final).
The bottom line is that exhaust gas purification is significantly reduced after about 22 minutes of driving time. The temporal link may seem a bit strange at first, but on closer inspection it makes sense. After all, the NEDC test cycle, which vehicles had to pass to obtain type approval until around 2018, runs for 1180 seconds, i.e. around 20 minutes.
This means that affected engines are clean at least for exactly the duration of the test cycle. Thus, the affected engines met the specified requirements on the test bench and have received type approval from the responsible EC type approval authority, which is a prerequisite for approval in Germany. The German Federal Motor Transport Authority assumes that such a timer is an impermissible defeat device.
How the accusations described above regarding Fiat Ducato-based vehicles are to be judged in legal terms will still have to be finally clarified by the courts, as there is still no supreme court ruling.
In our opinion, a timer that influences the emission control system depending on the duration of the NEDC test cycle is an impermissible defeat device within the meaning of Regulation (EC) No. 715/2007.
This is supported by the wording of the regulation, the legislative objectives and the case law of the highest courts in comparable cases. Fiat is of the opinion that the emission limits must generally only be complied with on the test bench and that the emission values outside the test procedure are irrelevant.
However, the wording of the regulation itself already speaks against such a view. According to it, "tailpipe and evaporative emissions (...) must be limited under normal conditions of use". (Art. 4(2), second subparagraph) and "the vehicle shall, under normal conditions of use, comply with this Regulation and its implementing measures" (Art. 5(1)). (Art. 5 para. 1).
In our opinion, normal operating conditions are those of real road traffic and not those determined on the basis of the NEDC.
In its judgment, which is not yet final, the Dortmund Regional Court even considers the shutdown of the exhaust gas purification system after 22 minutes to be fraudulent deception on the part of the type approval authority.
It is also clear from the legislator's objectives that the regulation is not to be understood in the sense that the emission limits are to be complied with only on the test bench. The aim of the regulation was to improve air quality in Europe. However, this can only occur if motor vehicles generally have low emissions and are not only able to comply with these emission values during a test cycle.
The courts(more information) in Germany are increasingly coming around to the view that the reduction in exhaust gas purification after around 22 minutes is an impermissible defeat device.
In this context, a landmark decision by the EU Court of Justice is expected in the near future. The Advocate General at the European Court of Justice (ECJ), Mr. Atahnasios Rantos, makes it clear in his consumer-friendly opinion that he sees individual consumer protection in the European standards on exhaust emission limits. Should the ECJ endorse this view, the hurdles for enforcing claims for damages in the emissions scandal before German courts would be lower.