Die nächste Runde im Abgasskandal hat längst begonnen

EA 288 – The new scandal engine from Volkswagen.

Research by independent media and more and more court decisions prove: Even with the supposedly clean Euro 6 engine EA288 illegal switch-off devices are installed. Hundreds of thousands of diesel drivers are affected – and have a good chance of enforcing claims for damages.

Actually, the legal review of the VW emissions scandal almost finished. The Federal Court of Justice (BGH) has unequivocally classified the switch-off devices in the EA189 diesel engine as a defect and convicted the Volkswagen Group of particularly reprehensible and intentionally immoral consumer deception. The highest German civil court has thus cleared the way for claims for damages from diesel buyers and provided a clear guideline for case law. With the negotiations on important detailed questions, the VW emissions scandal should now actually be entering its final round.

Hundreds of thousands of diesels affected by EA 288 manipulation

But even if the Federal Court of Justice finally announces its decisions on compensation for use, tortious interest and the statute of limitations for claims for damages, the biggest industrial scandal in the history of the Federal Republic is far from over - and certainly not for Volkswagen. It has been proven that Volkswagen also installed illegal defeat devices in the EA288. With the supposedly "clean" successor to the scandal engine EA 189, the car company has been able to supply hundreds of thousands of Euro 6 diesels of the brands VW, Audi, Seat and Skoda with 1.4, 1.6 and 2.0 liter displacement.

Clear indications of cycle detection

SWR research has found internal documents from Volkswagen brought to light which contain clear indications of a "cycle recognition" in the EA 288: In the "Decision template "Application guidelines & release specifications EA 288" there is talk of a route-controlled "switching of the raw emission calibration" and of a "dosing strategy in the cycle and outside the cycle".

For Peter Mock, European director of the research organization ICCT, this is clearly an illegal switch-off device, because the recognition of the driving profile is definitely not allowed. Due to this software manipulation, the engine control recognizes whether the vehicle is in test mode or on the road. On the test bench, the exhaust gas purification is increased by injecting more AdBlue. This ensures that the permissible limits for nitrogen oxide emissions are complied with. In real operation, however, the exhaust gases are emitted largely unfiltered. Experts estimate that nitrogen emissions in road traffic are up to ten times higher than permitted.

Also thermal windows and manipulation of the onboard diagnostic system

Another impermissible shutdown device in the EA288 is a thermal window, which controls the exhaust gas purification system so that it only works at temperatures between 17 and 30 degrees. In other words, on the test bench, where the temperature is a pleasant 25 degrees. In road use, however, the exhaust gas purification system does not work in midsummer, autumn or winter. Eleanor Sharpston, Advocate General at the European Court of Justice (ECJ), has expressly declared this switch-off device to be inadmissible. The onboard diagnostic system is also suspect. The public prosecutor's office in Braunschweig has emissions manipulation in the EA288 Investigations were launched against Volkswagen and the company's offices were searched at the end of 2019.

Volkswagen has admitted the existence of defeat devices

In a case involving a VW Golf 7 TDI (Euro 6) before the Duisburg Regional Court, Volkswagen itself admitted that both cycle recognition (in VW jargon "switchover logic") and a thermal window were used in the EA 288. However, the car manufacturer steadfastly denies that these are illegal shutdown devices: There is no connection between the recognition of driving curves and the control of exhaust gas purification. And anyway, the limit values for nitrogen oxide emissions are only relevant for type approval, i.e. for operation on the test bench and not for road traffic.

KBA finds no evidence of unauthorized manipulation

According to the Federal Ministry of Transport, the Federal Motor Transport Authority (KBA), which is actually responsible for ensuring that the applicable emissions values are complied with, examined the EA 288 diesel engine in 2016, but found no impermissible manipulation of the engine control or the exhaust system. Consequently, the authority has not yet initiated any official recalls of diesel vehicles with this engine, but with one exception: In April, VW T6 transporters were called to the workshops, allegedly because of a "conformity deviation" (code 23Z7). At the end of 2019, Volkswagen also started a voluntary recall for Golf models with EA 288 engines, thus seeking to forestall a mandatory recall.

Courts consider switch-off devices in the EA 288 to be immoral damage

Since the KBA has so far remained largely inactive in the EA288 case, the investigation of the VW emissions scandal 2.0 is in the hands of courts and experts. They have uncovered emissions manipulation in the EA189 successor and in a number of cases ordered Volkswagen to take back the vehicles and pay damages to affected customers or issued advisory orders, including for example:

• Regensburg Regional Court: Judgment against Volkswagen for immoral damage under Section 826 of the German Civil Code (March 19, 2020, case number 73 O 1181/19)

• Wuppertal Regional Court: Order of an order for evidence (15.03.2019, Az. 2 O 273/18)

• District Court of Baden-Baden (13.01.2020, Az. 4 O 247/19)

• Cologne Higher Regional Court (12.09.2019, Az. 15 U 234/18 and 19.09.2019, Az. 15 U 117/19)

• Regional Court of Ingolstadt (order of 24.06.2019, ref. 54 O 240/19)

• Duisburg Regional Court (30.10.2018; Az. 1 O 231/18)

"Volkswagen has obviously learned nothing. The consumer deception, the cover-up attempts, the arguments in court and the way it deals with customers who have been harmed: everything is the same as with the EA 189. The EA 288 is the new scandal engine - and the company is now paying the price for it. With the new round of the VW emissions scandal, another wave of lawsuits is rolling towards Volkswagen. The chances for those who have been harmed to enforce their claims for damages in court are very good. And that's not all: with the EA 897 and the EA 898, other diesel engines from the company are suspected of emissions manipulation. We advise all affected buyers to seek advice from a competent lawyer."

Partner Dr. Marco Rogert