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VW emissions scandal: Do you really have to comply with a car recall? UPDATED

Audi has become the first of the Volkswagen Group to issue a recall notification on vehicles fitted with EA189 family engines, the engine containing the emissions ‘cheat device’.

AUDI AUSTRALIA this morning issued a recall notification for a range of its vehicles running the EA189 family of diesel engines. It’s this family of engines that have been caught up in the #dieselgate VW emissions scandal – in case you’ve been under a rock, VW developed software to allow its EA189 diesel engines to ‘cheat’ US emissions laws. You can read more about it here.

So what does that mean for Australians who own vehicles with the EA189 engine? Well, as per Audi, many of  the other makers, including VW and Skoda will likely release their own official recall notification. All three brands here have issued notifications via their respective websites where owners were able to check their VIN and identify whether their vehicle was a ‘cheat’.

The reason for Audi’s recall, “The emissions levels may not meet the regulatory requirements when the affected vehicle is driven under normal conditions,” it’s recall notification stated. It went on to say, “Until a technical solution is made available by Audi head office, customers do not need to take any further action. In the meantime your vehicle remains safe to drive. Audi Australia will contact owners of affected vehicles in writing”.

UPDATED: Both Volkswagen and Skoda have now followed Audi’s lead and issued recall notifications for 1.6-litre and 2.0-litre diesel engines from the EA189 family. The recall stated exactly the same thing as Audi’s, that, “The emissions levels may not meet the regulatory requirements when the affected vehicle is driven under normal conditions”. No ‘fix’ has yet been announced.

And, overnight, the German Federal Motor Transport Authority (KBA) has thrown out Volkswagen’s submissions to voluntarily ‘fix’ 2.4 million diesel cars fitted with ‘cheat’ software in Germany, and ordered it to recall those vehicles. This demand from the German Government will force VW to roll out a recall of 8.5 million affected cars, the largest in the company’s history.

Volkswagen has been given until November to detail its fix with authorities, and will have to begin recall work, in Europe, in January 2016. VW hasn’t yet stated how it will fix the affected cars, although it has hinted that some will only need software upgrades while some will need new or rebuilt engine parts. The KBA will inspect and test the vehicles to ensure the ‘fix’ has been successful.

For the sake of customers and the image of the automobile, “we will clear up what happened at Volkswagen,” Enak Ferlemann, state secretary in Germany’s Transport Ministry, said in a speech in the lower house of parliament. “Germany will stay the No. 1 auto country.”

Ordinarily, a recall when a vehicle is running safely would be a voluntary recall, but it’s believed that the German Government’s imposing of a mandatory recall is testament to the importance of Volkswagen as an employer and financial entity in Germany, as well as a desire to ‘save face’ beyond Germany’s borders.

 

There’s been some suggestion that because Australia doesn’t have emissions laws like the US, and California in particular, that this might just be a lot of hot air. Well, that’s not the case, because Australian ADR79/03 and ADR79/04 both list the maximum allowable levels of emissions for both petrol and diesel vehicles.

According to the Department of Infrastructure and Regional Development: “The ADRs are performance standards which specify the maximum levels of emissions permitted under a specified test. The ADRs do not mandate the use of particular technology, although it has been necessary for vehicle manufacturers to fit catalytic converters to light petrol and LPG vehicles in order to meet the emission limits introduced by ADR37/00 in the mid 1980’s. For light duty diesel vehicles, particulate traps are necessary in most vehicles to meet the very low particle emission limits in the Euro 5 standards adopted in ADR79/03 and ADR79/04”.

If you’d like to read the list and the allowable emissions, click HERE.

So, if the tested emissions of the EA189 engine, on a rolling road, without the ‘cheat device’ running, are under the allowable limit set by the Government then, technically, there isn’t a problem. Whether the read world testing of the engine showed the emissions exceeded the lab test (without the cheat device running) wouldn’t matter a jot, because that test hasn’t been mandated as ‘the’ test for vehicle emissions.

Once Volkswagen, Audi and Skoda determine a ‘fix’ and contact owners with details of the fix under a recall notification, will owners have to comply? The answer is, no. Practical Motoring spoke with the ACCC today and was told, “There is no statutory obligation under the Australian Consumer Law for an owner to comply with a recall,” according to a spokesperson for the ACCC.

But what about if the recall is related to an item that poses a potential safety risk, and this doesn’t apply to the Volkswagen emissions scandal – all of the affected vehicles are safe to drive. If the owner chose to ignore the recall notification and then had an accident as a result of the recalled item failing, who would carry the blame?

“In general terms a person choosing to disregard a recall notice does so at their own risk. Whether liability would attach to that choice would be a matter for investigative and insurance agencies to determine taking into account the full facts of each case,” the ACCC told Practical Motoring.

That said, the ACCC told Practical Motoring that if the risk was considered to “extreme” then “additional action could be considered by state and territory authorities”.

“The Department of Infrastructure and Regional Development (DIRD) has the technical expertise and authority to conduct risk assessments of motor vehicles. In the event that a risk was identified as extreme and it was likely that a vehicle posed an immediate danger to vehicle occupants or other road users, additional action could be considered by state and territory authorities, such as suspending vehicle registrations or declining transfer and re-registration of the vehicle,” an ACCC spokesperson told Practical Motoring.

 

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5 Comments

  1. SteveC
    October 16, 2015 at 5:30 pm — Reply

    So there is no legal obligation to surrender the car for a recall unless the vehicle represents a safety risk. Whether it represents a risk to owners or the population at large would depend on the price of the lawyer arguing the case. Do higher than legislated NOx emissions represent an immediate risk or just a risk of coastal inundation later this century? Is that a sufficient argument? Given that there is no immediate safety risk, what is the argument used by the lawyers attempting a class action against Volkswagen? What material loss of any consequence have owners suffered to justify compensation? Opportunism?

  2. Lyndley Northcott
    October 16, 2015 at 5:55 pm — Reply

    As the cars do not meet Australian ADR’s, then they should be given a reasonable time to fix the emissions produced. As they technically don’t comply, aren’t they then UNROADWORTHY, and not insured? As Diesel emissions are said to be carcinogenetic, can’t the unrepaired cars be taken off the road, if repairs are refused of fail to comply with emission standards?

    • October 17, 2015 at 6:33 am — Reply

      Thanks Lyndley, but we don’t actually know if they’re outside ADR tolerances yet. And based on what the ACCC told me, it’s only if there’s considered to be a ‘safety’ risk can the recall be made mandatory. Cheers Isaac

  3. DannyBAus
    October 22, 2015 at 2:24 pm — Reply

    I’m extremely disappointed at the lack of urgency being demonstrated in Australia for this issue. There are some fundamental questions which need answering such as what are the actual emissions levels when out on the road? surely by now a team has taken some sample cars out and recorded these to be compared against infrastructure.gov.au guidelines?

    Audi state they are putting customers first in Australia and will keep us up to date but apart from the initial announcement of their misconduct and deceit there has been nothing. Friends back in the Europe received letters over a week ago yet I’m still waiting. Calling Audi they have no idea what’s going on, ACCC can’t divulge anything beyond what’s on their website which hasn’t been updated for over 3 weeks!

    I agree with Lyndley if these engines do not meet ADR 79/03, which they do not as they have already admitted cars contain defeat devices which are active whilst being tested / inactive when driving and defeat devices are prohibited under Section 5.1.2.1. These cars shouldn’t be on the road until fixed. Waiting for a fix up until the end of next year and beyond is not a reasonable time frame to wait as a consumer. And if you want to talk about these cars being safe, safe for who? As SteveC has stated the general population who are breathing in these toxic fumes will likely disagree, myself included I still have to breath in the crap coming out of everyone else’s 2.0 TDI engines as well as my own!

    I’m not having a go at the author of this post, merely using the site as a platform to vent my frustration as an Australian consumer.

    I would like to see guidelines on what consumers need to do beyond just sitting back and waiting until next year, ridiculous! Right now I don’t even want to drive my car so what do I do? It doesn’t seem like anyone is protecting us in this instance and I am deeply concerned and disappointed with this whole affair it is not just VW Group who are handling this badly.

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Isaac Bober

Isaac Bober