Dispute over thermal windows: German environmental aid may sue

Can environmental organizations sue against official decisions? Yes, says the ECJ – and thus confirmed that the lawsuit brought by the German Environmental Aid against so-called thermal windows is permissible.

The German Environmental Aid (DU) was completely right before the highest court of the EU. Non-profit environmental organizations can also sue against decisions made by authorities to ensure that certain environmental standards are observed.

According to German law, the problem so far has been that such organizations cannot in principle claim that they are particularly affected. So up to now they have usually had no right to sue. Now the top European judges are giving these associations more clout: According to the so-called Aarhus Convention of 1998, citizens should be more involved in effective environmental protection.

Exhaust gas cleaning must not simply stop

The specific case concerned a lawsuit by DU against the Federal Republic of Germany because of a decision by the Federal Motor Transport Authority in Flensburg. With the decision, a Volkswagen type equipped with thermal windows was approved. This software, used by many car manufacturers, reduces the emission control in diesels depending on the outside temperature, causing the cars to emit more nitrogen oxides, especially in cold weather.

Here, the European Court of Justice clearly repeated what it said in an earlier judgment: car manufacturers are not allowed to stop exhaust gas cleaning at certain temperatures. If, for example, the average annual temperature in Germany is around ten degrees, the emission control in VW vehicles would not be fully operational for most of the year. That is inadmissible, since VW should not rely on the fact that there is no other technical solution.

“Bang against Fraud Diesel”

The ECJ had already ruled in this way in principle in July. At that time it was about cases from Austria. Volkswagen had announced that its thermal windows protected the engine from immediate risks. The environmental aid now declared that the new verdict was a “bang against fraudulent diesel” and demanded from Federal Transport Minister Volker Wissing (FDP) that the Federal Motor Transport Authority recall all affected vehicles and have them retrofitted with effective hardware at the expense of the manufacturer.

However, one crucial point in thermal windows is still open: liability. The question is whether car buyers have a claim for damages against the manufacturer if a thermal window is installed in their car. Corresponding lawsuits are pending with the Federal Court of Justice in Karlsruhe, among others. He has so far rejected claims for damages. A decision by the ECJ on the question of damages is still pending. The Federal Court of Justice will deal with the issue again in two weeks.

Ref. C-873/19