back to article Herbie Goes Under Investigation: German prosecutors probe ex-VW CEO Winterkorn

Volkswagon's former CEO, Martin Winterkorn, has come under investigation by the German state attorney. The German state attorney's office in Braunschweig, not too distant from Volkswagen's base in Wolfsburg, acknowledged that it had received complaints from people who had raised the issue anonymously, reported the New York …

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  1. Pascal Monett Silver badge

    he was unaware of the "defeat device"

    If I can bring myself to accept that that statement might be true (and I'm having a bloody hard time of it), then that would mean that he did not decide or approve its creation, installation or use. Which would appear to imply that the Board had no knowledge of it either, since the CEO reports to the Board.

    So I am supposed to believe that strategic decisions with, as we have seen, major shareholder impact are being decided under the radar and without even the knowledge of the CEO, much less his approval ? And that is happening on the engine, which is by far the car component that undergoes the most scrutiny and is shrouded in the greatest protection ?

    Does VW have a shadow government or something ?

    Sorry, no. I just can't swallow that.

    1. AndyS

      Re: he was unaware of the "defeat device"

      I honestly don't know about this. Yes, the engine (and control software) undergoes a lot of scrutiny. No, the CEO of the entire shebang does not know every detail of what every team is working on.

      There is no way on earth that he would be aware of all the functions carried out by the software. There is a very fair chance he wouldn't be able to name all the cars that VAG sells, and I'd be amazed if he knew what engine options were offered in what markets.

      This is a phenomenally big company, and I find it perfectly reasonable to believe he didn't, personally, know anything about the issue.

      What we do know, is that the software will have been controlled well enough that the developers (or at least the team) which made the changes and committed them to manufacture will be easy to trace. The teams working on emissions control will certainly have a good idea of what was happening. There will be email communication regarding it, and the individual coders likely can show exactly why they went that way (and where the pressure was coming from). The relevant directors will know that remarkable results were achieved, but may not have dug too far into how it was done.

      That may well be as far up the chain as the knowledge went. It's simply not feasible for the people at the top of an organisation this size to know every aspect of how their engineering is done.

      1. DropBear Silver badge
        WTF?

        Re: he was unaware of the "defeat device"

        Bollocks. This is not "every aspect". This is THE ONE SINGLE aspect of how their engineering is done that management needs (and absofuckinglutely would) know about - exactly for the reasons depicted currently.

        1. Gordon 10 Silver badge

          Re: he was unaware of the "defeat device"

          @dropbear

          I'll take your bollocks and raise you a scrotal sack.

          A CEO needs to know about the finances, the strategy and the general functioning of the company at a high level - he may have needed know how exposed they were - however I suspect there are 4 or 5 layer of mgt below him that also didn't know, probably a couple of them may have gone out of their way to not know.

          At best I cant see this having got much higher that the head of engine development and the various regional product heads, unless someone had actually flagged that the legal/regulatory risk of doing it in big enough CAPS that someone paid attention.

          I don't believe there will be a smoking gun memo from a senior executive for this. The decision will be buried in the detail.

          Grikath has summed it up very well indeed.

        2. Captain DaFt

          Re: he was unaware of the "defeat device"

          I suspect it was a case of, "Just make it work, I don't care how!"

          Followed by, "It's fixed? Good. Leave the details with my secretary."

          The report is probably still where she filed it, unread.

      2. Peter Simpson 1
        Mushroom

        Re: he was unaware of the "defeat device"

        I'd love to see the comments in the code that decides whether to enable or disable emissions control, and in the source control system when that change was checked in.

        // turn off emissions controls unless on dyno

        1. John Tserkezis

          Re: he was unaware of the "defeat device"

          "I'd love to see the comments in the code"

          There won't be, not in the critical bits anyway. Keep this in mind, the programmers knew full well what they were doing was outright illegal. Don't you think they would not only not leave out any comments, they'd probably write the code in a manner that might be glossed over by the casual eye, AND they'd make bloody sure their names were not attached to the project.

      3. Vic

        Re: he was unaware of the "defeat device"

        the developers (or at least the team) which made the changes and committed them to manufacture will be easy to trace

        The trouble with that is that you tend to land the blame on the naive developer trying to keep his job, rahter than the PHB that ordered him to do it...

        In my last job, I left a commit comment that said "committed under duress from $manager". There's no way I was taking responsibility for that pile of crap.

        Vic.

    2. Grikath Silver badge

      Re: he was unaware of the "defeat device" @ Pascal

      It's actually quite possible he was unaware of the way the engines cheated the system. It's not as if people never Lie to Management, and as CEO you're pretty much removed from the niggly details of how things get accomplished day-to-day.

      Given the nature of the way the tests were dodged, and the fact the technique is essentially really, really simple, in a "no-one would believe anyone would ever do anything so blatantly obvious, because..", the blame must be sought in the development train of that particular engine type, not in top management.

      It must have taken several people to get it cleared, but you can cover up a lot under "firmware optimisation", get it signed off, and other than Job Well Done it'll disappear in the massive sheaf of documentation pertaining to [engine project x], and reported up as part and parcel of the whole deal, never in detail.

      If there's questions about How It's Done from Higher Up, all you need to do is waffle about "optimisation of existing variables" and have their eyes glaze over (any decent techie knows how to Bong­¡ Management...) and ward off any scrutiny. "No sir, It's just a combination of optimised sub-variables which work for this particular setup. We've cleared it with Legal, but it's too specific to patent, yes, even in the US weirdly enough, which is a shame. But isn't it nice that we've got that edge up on the competition? We're pretty chuffed we found it as it saved us [x] man-hours of development, there's one of those thingies from Finance tacked to the report about it. I'm just glad we got the job done on time."

      It's not bloody rocket science, and does not need to take more than a Manager without the relevant technical skills to call BS ( a situation that's become so common it's practically a law of nature nowadays..) to pull off. And once Signed Off it's Company IP, so Legal will do the Covering Up for you as par for the course.

      The endless rounds of reviewing are nice, but even in Open Source Software, with thousands of (putatevely knowledgeable, sometimes even paranoid ) eyeballs scanning the code Things Get Missed and stuff slips through. Company review cycles are less efficient than that, so things will slip through, especially the stuff that's based on so basic a cheat, since no-one expects it to be there.

      After all, the Governement Watchdogs would catch such blatant cheating right away...Right? ermmm... right?!!.... [/sarc]

      1. Mark 85 Silver badge

        @Grikath -- Re: he was unaware of the "defeat device" @ Pascal

        I have to agree with you having been in engineering long before IT. CEO's are beancounters not engineers. Outside of Musk's hands-on approach, the last one Iacocca I think. Even then.. air pollution controls would be a tick mark on a PowerPoint presentation. The (the board) might ask, "how did you do this".. and "software tweak" would have satisfied them.

        I'm sure that by the time this is over, some "rogue" contractor will get the blame.

    3. Crisp Silver badge

      Re: he was unaware of the "defeat device"

      It doesn't really matter if he says he was unaware or not.

      He is the CEO, and ultimately the buck stops with him.

      1. LucreLout Silver badge

        Re: he was unaware of the "defeat device"

        @Crisp

        Yup, exactly. The big bucks come to him because the buck stops with him.

        The decision to rig the emissions testing was a core strategic decision with enormous financial consequences - market share gains until you get caught, then mahoosive fines thereafter. Lets be kind and say this will only knock the group shareprice down by about 10% once it works its way through the system. It is the CEO and boards job to know about every issue that can influence the groups stock price to that extent, for it is not possible to set deliverable strategies in ignorance of them.

        What we have here is a group of people at the top, middle, and bottom of a company that set out to deliberately game the rules. Its been going on for many years. It wasn't an engineer having a good idea so he could get home to his family in time for tea tonight. It wasn't some middle manager having a decent tactical decision to meet their divisional goals for the year so they could get a bonus. This was a corporate strategy, and they always, always go to the top.

        This is going to run and run. It'll end up spanning all fuel types, across the whole range, and it will be industry wide. It is in every way worse than "the banks": People will have died due to air quality issues [1], everyone is way out of pocket in cash terms [2], the problem is systemic, and whole waves of new regulations & regulators will ensue.

        [1] Ok, I accept that this will have been the old and/or very sick, but they're still people. And people die of respiratory issues all the time. Some of those will inevitably have been aggravated by vehicle emissions we didn't think we had, and shorter lifespans will have resulted, even if not by much.

        [2] You buy the vehicle because testing shows it does 70mpg, but in reality you never get more than 40 or 50 out of it. You'll also now find yourself in a much higher VED band, which will depress the value of the small gutless cars further down the emissions range and older higher powered cars as their tax rates could soar. Add this up over the past 10 years and you're looking at tens of billions in the UK alone.

        1. Nigel 11

          Re: he was unaware of the "defeat device"

          If VW is the only company that's been doing this, and all the others are complying with the test regime without explicit software cheating, then I'll be surprised if VW is still in business ten years from now. Why would I buy another VAG car, when their engines are five years behind their competitors rather than the five years ahead that they were suggesting until recently?

          But if they've all been cheating in much the same way, that makes protestations of high-level innocence harder to swallow. None of the CEOs knew??!

          Watching with interest.

          1. Gordon 10 Silver badge

            Re: he was unaware of the "defeat device"

            It hasn't had much (any) coverage as yet. But the UK CEO of Vauxhall resigned last week with the reason not given. Will be interesting if the reason is eventually disclosed.

            http://www.motoringresearch.com/car-news/surprise-as-tim-tozer-resigns-as-vauxhall-boss-0923996630

            1. John Brown (no body) Silver badge
              Coat

              Re: he was unaware of the "defeat device"

              "the UK CEO of Vauxhall resigned"

              Tim Tozer? Is that spelled correctly?

        2. Named coward

          Re: he was unaware of the "defeat device"

          "You buy the vehicle because testing shows it does 70mpg, but in reality you never get more than 40 or 50 out of it." - No, it does do 70mpg, but it spews out a lot more stuff than you were made to believe. VED Bands and most EU-type regluations are based on CO2 so presumably they're not affected.

          1. LucreLout Silver badge

            Re: he was unaware of the "defeat device"

            @Named coward

            I don't see how that is possible. The problem boils down to the ECU having two maps applied to it, which switch depending on what is happening with the other controllers such as the one int he gear box (bench test vs road running). The ECU map alters both fuel trim and ignition timing to deliver a mix of power, economy, and emissions.

            If I remap my car to make it more fuel efficient, it loses a lot of power and driveability. Map it the other way and it burns more fuel - a lot more, and produced higher CO2 emissions (and NO2 for diesels). And that is what switching the map on the fly achieves - lean map for bench tests, thirsty map for the road.

            The kids in the McDonalds car park with the remapped Fiesta? That's what VW did, just without the fartcan back box and booming stereo.

        3. Vic

          Re: he was unaware of the "defeat device"

          The decision to rig the emissions testing was a core strategic decision

          We don't know that yet. Whilst it might have been, it might also have been a relatively lowly manager who decided it was The Thing To Do. Possibly, he didn't even understand the ramifications of the decision - just got excited that his team had managed to pull off a cracking set of numbers.

          Let's wait until the investigation is complete before deciding the outcome...

          Vic.

          1. LucreLout Silver badge

            Re: he was unaware of the "defeat device"

            @Vic

            We don't know that yet. Whilst it might have been, it might also have been a relatively lowly manager who decided it was The Thing To Do

            I understand your sentiments, but I'm yet to work anywhere with more than 1000 staff, that a "lowly manager" can move the needle to a significant extent, either through ignorance or intent, without anyone higher up paying attention.

            The top brass always want more of whatever is producing the cheddar, and they actively seek out said cheddar producer to see how managerial steroids may be adminstered to the effort, while ensuring there is no paper trail to lead back. Success has a thousand fathers, while failure is a bastard. Its a fundamentally dishonest way to behave - taking the credit and the millions, but actively seeking ignorance to avoid adverse consequences. Ignorance, as any law student will attest, is no defence.

            Altering a vehicles fuel mapping requires a decent bit of experience and knowledge, unless you're happy blowing holes in a few pistons because you leaned up the mixture too far, or bending a lot of conrods because you screwed the pooch on the ignition timing. I can't imagine the engineer in charge of the base mapping for an entire manufacturer was sufficiently inexperienced to not cover their butt when instructed to implement this by management.

            1. Vic

              Re: he was unaware of the "defeat device"

              I'm yet to work anywhere with more than 1000 staff, that a "lowly manager" can move the needle to a significant extent, either through ignorance or intent, without anyone higher up paying attention.

              There's the difference - I *have* worked in such organisations - where the top brass simply want to be told it's all going swimmingly, and anyone rocking the boat is considered not to be a "team player". They do exist - I have been there.

              I've no idea if VW is such a place - I've never worked for them.

              Vic.

      2. ciaran

        When was he was unaware of the "defeat device"?

        Surely the question is not "if", its "when"? Obviously he knew before he resigned. The question would be if he knew, for example, before the car was commercialised in the US.

      3. Nigel 11

        Re: he was unaware of the "defeat device"

        He is the CEO, and ultimately the buck stops with him.

        Which is why he resigned.

        However, that's not a reason to jail him, and what this article is about is criminal liability (if any).

        1. JC_

          Re: he was unaware of the "defeat device"

          "However, that's not a reason to jail him, and what this article is about is criminal liability (if any)."

          In Common Law countries there's the concept of Vicarious Liability, which could make him subject to prosecution.

          I don't buy that he was unaware. Breaking into the US market was strategic for VW and they attempted it by mass-marketing diesels, unlike any other manufacturer. Only wilful ignorance could explain Winterkorn - a well known control freak - failing to ask his staff how they were going to achieve this miracle.

      4. Charlie Clark Silver badge

        Re: he was unaware of the "defeat device"

        He is the CEO, and ultimately the buck stops with him

        Which is why he resigned. Too early in my opinion as, unless he was personally involved in a cover up, he'd be well-placed to lead an investigation. Playing musical chairs like they just have, doesn't really help.

        However, legally I'm pretty certain that he is in the clear.

        Seeing as other manufacturers have remarkably similar results I suspect it may only be a matter of time before similar discoveries are made elsewhere. Helluva a way to deflect criticism from General Motors recent failings.

        1. Graham Marsden

          Re: he was unaware of the "defeat device" (with a nod and a wink...)

          Boss: Our emissions figures aren't good enough, we need to make them better.

          Minion: It would cost a lot of money to improve our engines to do that.

          Boss: There must be *something* you can do... (sotto voce: "Will nobody rid me of this turbulent priest?")

          Minion: Well, there is something we can do. Leave it with us, we'll deal with the situation...

  2. Dan 55 Silver badge

    The R&D dept is going to get hung out to dry

    The managers have already been suspended. All the big bosses will say is that they gave the instructions to make it work better, not break the law.

    Nice headline, need image of Herbie to complete it.

    1. This post has been deleted by its author

      1. Mark 85 Silver badge
        Devil

        Re: The R&D dept is going to get hung out to dry

        Well.. it's all good then. It used exactly as designed and as they were told how to use it.

  3. James Micallef Silver badge

    Let me clarify:

    "seeking to clarify the criminal nature of the emissions issue, specifically whether it may constitute fraud"

    Yes

    "and to determine who knew about it"

    I'm sure a dig around the last few years of emails and memos will determine that, I will be amazed if no-one at C-level knew about this. A cheat of this magnitude would require hundreds of people to be in on it to some extent, and as per other articles on elReg, concerns WERE raised.

    On the other hand I would not be amazed at all if a few engineers and middle management do jail time for this while the top executives get away scot-free with their 7-digit severance payments

  4. NorthernCoder
    Trollface

    Anonymous complaints

    "The German state attorney's office ... had received complaints from people who had raised the issue anonymously"

    One call from Munich and one from Stuttgart..?

    1. Charlie Clark Silver badge

      Re: Anonymous complaints

      Don't forget Detroit: General Motors and Chrysler having been having a great time recently.

  5. Your alien overlord - fear me

    Good to see the (possibly) criminal acts of the board are being offloaded onto the workforce who probably don't have expensive lawyers.

    Vorsprung Borked Technology

    1. Anonymous Coward
      Anonymous Coward

      Good to see the (possibly) criminal acts of the board are being offloaded onto the workforce who probably don't have expensive lawyers.

      I wouldn't be so sure about that - most of them are unionised. Those unions not only have good lawyers, German unions in themselves they hold quite a bit of power so I don't think it'll be *that* easy.

  6. Anonymous Coward
    Anonymous Coward

    After working with people on chipset driver software

    I would say it is entirely plausible that only 10-15 individuals actually have access to the code and it probably hasn't been looked at or changed in ages, almost certainly years, only its parameters.

    I would not be at all surprised if it was only supposed to be for testing purposes and the flag was left on in an obscure control bit.

    This software is unlikely to be routinely maintained, just look at todays el-reg article on the network stack bug in Linux for optimising traffic in decade old code.

    Although I strongly agree that a review should take place I find it disappointing but entirely likely that no current employee has looked at this code since it was originally developed. It has simply been re-used...

    1. Dan 55 Silver badge

      Re: After working with people on chipset driver software

      Over 6 years and no fine tuning, they just build engines and the magic software reduces the contamination? Don't buy it.

      1. Charlie Clark Silver badge

        Re: After working with people on chipset driver software

        Over 6 years and no fine tuning, they just build engines and the magic software reduces the contamination? Don't buy it.

        Please don't take a look at any of the embedded software in any industrial devices as it is almost always entirely shit: cargo cult of the worst sort with no QA because it all "just has to work".

        1. Gordon 10 Silver badge

          Re: After working with people on chipset driver software

          Regardless of a cheat mode there HAS to be dyno detecting routines as having zero air intake flow while your wheels and engine goes like the clappers on a dyno is a totally abnormal scenario and the engine managment would struggle to handle it without some guidance.

          Name one real world scenario that would come close.

    2. Primus Secundus Tertius Silver badge

      Re: After working with people on chipset driver software

      My view entirely.

      I object to the phrase 'defeat device', when it is a software configuration problem.

      Software that is expensive to develop and needs highly qualified staff. For most companies it would be more commercially sensible to buy in the software. So I am sure it runs on far more than a few VW engines.

    3. thesykes

      Re: After working with people on chipset driver software

      "I would not be at all surprised if it was only supposed to be for testing purposes and the flag was left on in an obscure control bit."

      Really? How naïve can someone be? Do you really, honestly believe that VW engineers accidentally left this is in by accident? Can you imagine that the engines were tested in the factory, and then never tested out on a test track or open road? That absolutely no sensors were monitoring emissions at that time? That nobody compared test bed and road emissions to see if they were similar?

      You think that one engineer said "Hey, the NOx emissions are 40 x higher on the road than in the lab"... to which another engineer said "That's normal, ignore it".

      And all this was going on for 7 years? Accidentally?

      Next you'll be telling me you're currently helping a Nigerian prince with his banking arrangements.

      1. Prst. V.Jeltz Silver badge

        testing only?

        i dont buy the "control bit" accidental test mode theory.

        Why would there even be a test mode of low emessions - crippled power?

        and did the bit of code that detects when car is being tested appear by magic?

        even if there was some reason to have the lower emission setting for testing - theyd just put a switch on it, not sneaky dyno detecting routines

        1. Grikath Silver badge

          Re: testing only?

          "Why would there even be a test mode of low emessions - crippled power?"

          Bottom line parameter testing. Even if you know the power would be crippled, you need to know the bottom line before dialling things back to where the engine is "usable" again. Not unlike the old-fashioned fiddling with carburetors peeps did in the Old Days.

          1. Prst. V.Jeltz Silver badge

            Re: testing only?

            that carburettor analogy dosent hold water - you're talking about calibrating / setting up the carb really. The car isnt being calibrated, or changed in ant way ,its supposed to be beinmg measured.

  7. naive

    Please make it stop

    The world seems so bored nowadays. Yes perhaps VW was a bit too creative in exploiting the loop holes legal regulations leave open. But now the rest of the world seems inclined to sue VW for all the mishaps that ever happened to them, just waiting to see when some monkey starts sewing them for the weather. At least it is good Porsche owns a majority of the shares.

    Nobody died or even was wounded. GM is accused of trying to hide the fact that their faulty ignition locks killed 124 people, and wounded many more.

    Were there headlines about that ?, no there are not, 124 dead is something totally different then exhaust readings which are 20%-30% too low.

    So stop whining, fix those holes in legal regulations about emission tests and let VW do what it is good at.. making cars.

    Good thing is, it will be forgotten in a week.

    1. Fonant

      Re: Please make it stop

      There are no holes in the legal regulations. What VW did was completely and provably illegal: their cars do not meet the legal emissions requirements, except when cheating the test.

      1. naive

        Re: Please make it stop

        Well that remains to be seen if VW violated the law when taken to the letter. The law describes the conditions applying to the tests carried out. Since the hang mob of experts on the matter seems to be hanging out here, perhaps somebody could enlighten the unaware which section of the law, either in USA of EU, have been violated by VW, even if they adapted the ECU so the car would produce optimal readings given the test conditions.

    2. Nigel 11

      Re: Please make it stop

      Nobody died or even was wounded.

      No. Thousands will have died of asthma, lung cancer, heart attacks... It's just impossible to say what percentage of the much larger number of deaths over the last few years might have been averted and for how long, had levels of pollution been reduced in the way that following the regulatory rules would have achieved. No grieving widow can say "you killed my husband" and sue VW, but I have no doubt that some widows' husbands would still be alive had this cheating not taken place, and many more would have enjoyed a few more months of life before their lungs or hearts failed.

      1. Prst. V.Jeltz Silver badge

        Re: Please make it stop

        dont forget this is only in California these rules apply. the 11 milion cars figure is worldwide , so only , i dunno , 200k cars are breaking the law - the rest are poisoning us legelly

        1. toughluck

          Not just California

          EPA Tier 2 emissions standards apply US-wide. Euro 5 standards are less stringent than EPA's Tier 2, but VW still exceeded them.

          Limits for NOx emissions:

          Tier 2 rules: 0.043 g/km

          Euro 6 (effective Sept. 2015) for Diesel engines: 0.080 g/km

          Euro 5 (effective Sept. 2009) for Diesel engines: 0.180 g/km

          Euro 4 (effective Jan. 2005) for Diesel engines: 0.25 g/km

          If VW cars are exceeding the limit 35-40 times (I can't stress this enough, it's not 35-40 per cent, it's 35-40 times), then they can be expected to emit ~1.4-1.7 g/km. In other words, they don't even meet Euro 3 regulations (Jan. 2000) which were the first to limit NOx emissions in Europe.

    3. Dan Paul

      Re: Please make it stop

      Naïve, There were plenty of headlines about GM and the killer ignition switches. Just because you missed them on your side of the world is no reason to whine about the world being unfair to Volkswagen.

      Volkswagen broke the emissions laws in the US and Europe and should be fined, just like GM is.

      The US is not treating them any different than any other screwup !

      Never hear anything about Tanaka and their killer airbags? They affected almost all auto manufacturers, worldwide over multiple model years. Nothing like having an airbag leave shrapnel in people to make you wonder what were they thinking?

      None of these issues will be "forgotten" in a week whatever you say.

    4. toughluck

      @Naive

      Martin, please leave this forum alone, nobody's listening to you.

      I'm aware there are some VW fanboys that for some reason protect and justify what VAG was doing. You're forgetting (or ignoring) three things:

      1. When CAFEE of U of West V tested a Jetta and a Passat on the road last year, they ran them alongside a diesel BMW X5, and the BMW met the limits, while VW exceeded the limits 20-35 times. This vindicates the lab tests, and cars that do pass the test seem to be able to meet the limits on the road, too.

      2. There are no legal holes in the test -- you are not allowed to tamper with the test much the same way as you're not allowed to cheat on an exam. If you cheat on an exam, it's not valid regardless of whether your answers were correct or not, and you'd be prosecuted for cheating even if you fail the test. The test, as such, is null and void.

      It's the same situation here. VW tampered with the test, it's not valid, the cars do not and cannot meet emissions standards. It's an offense and much more serious than exceeding the emissions. VAG would be in trouble if it turned out their cars did not exceed emissions for 10,000 miles, but started to exceed them afterwards and it couldn't be predicted in advance. They'd be told to fix this discrepancy, but otherwise nobody would do as much as wag a finger at them.

      3. VAG did not mess with the emissions test so they could shave off that last 0.01 g of NOx to just barely pass it. They flouted the standard and presented cars that are completely unfit. Not only in USA and Europe, but in any country that has any sort of emissions standard testing.

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