Car Emission Test Scandal Investigation: Extradition of German Executives to the US and UK a Possibility

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On 18 September 2015, the Environmental Protection Agency (EPA), in the United States, announced that Volkswagen (VW) had violated the Clean Air Act, by unlawfully installing software into diesel cars between 2009 and 2015 which allowed cars to flout emissions tests. It is alleged that cars emitted toxic gases of up to 40 times permitted levels. A report is here.

BMW is also embroiled in the scandal, with the International Council on Clean Transportation (ICCT), the NGO that ran the emissions tests which ultimately led to the discovery of the so-called ‘defeat devices’ in VW cars, revealed that a BMW X3 model exceeded European emissions limits by more than 11 times. The ICCT did not state the cause for the alleged problem. BMW denies any wrongdoing. A report is here.

Extradition from Germany

The case is still unfolding, and the legal ramifications remain unclear. However, in the event that the alleged rigging of VW emissions was conducted from abroad, namely Germany, where VW is headquartered, extradition proceedings, brought by the US, for those individuals concerned is a real possibility.

Extradition of German citizens to non-EU countries is prohibited by Article 16(2) of the Basic Law for the Federal Republic of Germany. The US authorities have, therefore, in the past, issued INTERPOL Red Notices, effectively preventing individuals from travelling outside their home country. Even if these individuals are immune from extradition from their country of citizenship (because that country does not extradite its own nationals), they are at risk of extradition from a foreign territory, if they travel and are subject to a Red Notice. With this prospect, it would not be surprising to see any charged individuals entering into a plea deal in the US, which would ultimately mean that any Red Notice would be lifted.

It also appears that authorities in the United Kingdom have opened an investigation into the matter, with the Transport Secretary, Patrick McLoughlin, confirming that the Vehicle Certification Agency is currently working with manufacturers “to ensure that this issue is not industry wide”.

If similar defeat devices are found to have been installed in cars in the UK, and charges are brought in the UK, extradition of executives from Germany to the UK is a possibility, through the operation of the European Arrest Warrant scheme.

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