In a recently revealed court document further evidence has come to light showing that Mercedes Benz, Volkswagen and BMW conspired together to create devices that sought to manipulate the emissions test results of new diesel cars. This was seemingly designed for each manufacturer to be able to cheat emissions outcomes in order to fool regulators and customers into believing that their vehicles met EU emissions regulations when, in fact, in real world driving conditions they did not.

In a recent Witness Statement of Martyn Jeremy Day, Solicitor of the Senior Courts of England and Wales, reference was made in open court on 18th July 2023 to interim findings filed in the Netherlands courts of Dr Markus Heitz, an expert software engineer of over 30 years’ experience.

In his interim technical report Dr Heitz states:

He has been involved in analysing engine management firmware installed in various Mercedes Benz models since June 2000;

He has carried out detailed analysis of various versions of firmware running onECUs manufactured by Bosch and Delphi and installed in vehicles equipped with the OM651 4-cylinder and OM642 6-cylinder turbo diesel engines subject to either the Euro 5 or Euro 6 emissions regulations. These are the two main diesel engines developed in-house by Mercedes Benz;

He has investigated 14 different versions of firmware installed in more than 40 different models of OM642-engined vehicles – and more than 30 different versions of firmware installed in more than 40 different models of OM651-engined vehicles;

He has found that all of the ECU firmware versions in use in OM642 and OM651-engined vehicles which he has studied contain code which distinguishes between the specific conditions of the New European Driving Cycle test (“Test Conditions”) and normal driving conditions on public roads (“Normal Use”)

All of the ECU firmware versions also contained “Defeat Devices”, apparently designed to change and control the operation of the emissions control systems in the vehicle so as to always pass the specified Euro 5 or Euro 6 emissions limits for oxides of nitrogen (“NOx”) during testing but routinely, indeed almost always, exceed those legal limits during normal driving

Analysis is still ongoing, with firmware in OM622 and OM607-engined vehicles also showing strong indications that they contain comparable Defeat Devices

In recent further real-world findings, during a test drive carried out in an Euro 6 OM651-engined Mercedes-Benz C220D, , the total NOx emissions during the test drive were about 38 g over a driven distance of 110km. The EU6 standard allows emissions of 80 mg/km; over a distance of 110 km this results in permitted emissions of 8.8 g. The emissions limits were therefore exceeded by a factor of 4.3.

Yet another competition breach, this time in Korea
Alongside this revelation, the South Korea anti-trust regulator (KFTC) has confirmed that it will impose a combined total fine of 42.3 billion won ($33.48 million) on Mercedes Benz, BMW, and Audi as it found that they ‘colluded to curb emissions in test environments’ on their diesel cars.

Mercedes Benz was fined 20.7 billion won, BMW 15.7 billion won, and Audi 6 billion won, while Volkswagen was not fined as it did not earn revenue relevant to the issue. Volkswagen has settled claims against it in various countries without the need for final court adjudication.
(Source examples; Reuters; Global Competition Review; Competition Policy International)

Milberg London LLP is a specialist legal firm acting for over 77,000 claimants, Mercedes Benz customers, that are suing the manufacturer over their alleged diesel emissions cheating.

Polly Blenkin, Partner at Milberg London LLP, comments:

“The evidence against Mercedes Benz continues to mount.

Official court documents, expert reports and regulatory findings demonstrate ever more clearly that, not only did Mercedes Benz apply specific software with vehicle ECUs to cheat emissions tests, but that there was in effect a conspiracy between multiple manufacturers including Mercedes Benz, BMW, Audi and Volkswagen, to utilise comparable firmware ‘defeat devices’ across virtually all of their diesel models.

This decision by the Korea Fair Trade Commission to fine Mercedes, BMW and VW lifts the lid on this deliberately orchestrated attempt to deceive both regulators and vehicle owners into believing that these cars were far more efficient in emissions output than they actually were. This further evidence undermines the companies’ attempts to avoid liability and bodes well for our action in the English courts, which is now ramping up significantly.

One wonders why Mercedes Benz seems content to see these ongoing revelations played out in public, damaging their brand’s credibility significantly. Rather than spending money with lawyers to delay the inevitable, they should do the right thing and compensate their UK customers as they have elsewhere.”

The interim technical report was filed in the High Court on 30 June under the cover of the 4th witness statement of Martyn Day.

Both the technical report and the witness statement became public documents on 18 July when they were referred to in open court.