I 100% agree Audi should be penalised. But let's not sit here and pretend that what Toyota did was just fine. It was illegal by the wording of the rules, the same as Audis. Toyota only got away with it because by the time it was discovered, Toyota had already lost Le Mans and nobody protests a car which retired (and didn't run through post-race scrutineering), and the ACO had already told them not to bring the device back.
Movable bodywork parts/elements are forbidden when the car is in motion. Any system operated automatically and/or controlled by the driver to modify any airflow when the car is in motion is forbidden.
The only thing Toyota did differently was they engineered a car that was illegal, but circumnavigated the test to check its legality. Toyota took the attitude that because they couldn't test it properly, it'd be fine. Audi appear to have just screwed up and ran the car illegally. Toyota went out of their way to engineer a car that was illegal but could pass a test.
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