Robmac
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As you say, we could go round and round with this.
Not really. The programming remained as was at the point of testing -- there was no 'reverting'. It's no worse than passing the MOT emissions test where the system is configured to not permit full power when the transmission is disconnected (i.e. under MOT test conditions) but have full power (or even a selectable high power mode -- like "M" or "Sport" mode) available under normal driving conditions. It's just like motorsport where each constructor seeks to obtain advantages over their competition -- often by stretching the rules to near breaking point. Just like that, the answer is to adjust the rules to ban the undesired practice, not to penalise people for doing what was perfectly legal at the time.
Just consider the position of car manufacturers: they all knew the rules were flawed and could be gamed to obtain substantially lower than 'real-world' emissions ratings to make their cars more attractive. Any manufacturer who didn't tweak their systems to take advantage of this would be at considerable disadvantage; and so they all did it -- pretty much had to -- even non-European manufacturers who needed to be competitive in Europe.
I'll take your word for it Geoff and leave it to the legal lot to sort out.
Whatever you or I say won't make the slightest bit of difference.