If you use the car the way tests use the car, the performance will be the same. The trick is you can't complete your daily driving needs by driving the way the test does.
The only way to drive in a way that would have replicated the results of the VAG tests would be to not touch the steering wheel. At all.
For VAG this wasn't a case of the test not being quite the same as regular driving, it was VAG deliberately detecting a tests and altering the way the engine worked to avoid failing.
The intent was to cheat the tests by secretly tailoring the behavior to the tests, even though they knew that real-world driving would be different and that the tests are supposed to indicate real-world emissions.
Intent matters. You can’t set out to cheat a test, succeed, and then say that it’s legal because you succeeded, any more than you can steal from a store by hiding an item under your coat and then say that it’s legal because you disguised it well enough to fool the guard.
That's the whole point: you cannot use the car the same way as during the tests, even if you exactly match speed, acceleration, distance, friction, temperature and any other variable. The software that limits emissions is disabled during "normal" operation, ie. driving.
I will attempt to make an analogy that tries to shine light on the angle I'm coming from. When we interview for software engineers, many companies place much of the emphasis on algorithms as opposed to other hard-to-test skills. Now, you have a candidate that aces any algorithm question put in front of them yet completely sucks at software engineering. Did that person commit fraud? It seems, to me, that the test is what is broken.
We all clearly understand the angle you're coming from, but you haven't been able to make the case it isn't fraud. Because it is textbook fraud.
If you think the test is bullshit, then you make that case separately. You don't lie about how you're passing it and then when caught say 'but it's the test's fault!'.
For VAG this wasn't a case of the test not being quite the same as regular driving, it was VAG deliberately detecting a tests and altering the way the engine worked to avoid failing.