“Thermofenster” kommt VW teuer zu stehen

New ruling in the diesel emissions scandal.

For the "thermo window", a frequently used manipulation of emissions control, a clear position is emerging in case law: they are illegal. Car manufacturers who sell vehicles with this defeat device are deliberately harming their customers in an immoral manner. This is confirmed by a recent ruling by the Heidelberg Regional Court against Volkswagen.

The "thermal window" - the term was coined by former transport minister Alexander Dobrindt - is a temperature-dependent manipulation of emissions control. It means that the exhaust gas purification only works in a narrow temperature window, for example between 17 and 30 degrees. That is, on the test bench, where it is a pleasant 25 degrees. On the road, however, the exhaust gas purification only works when the weather is good and even then only when it is not too hot. From October to May, i.e. more than half the year, the diesels are on the road as polluters.

This is not a problem for the car companies. Whether Audi, BMW, Daimler, Porsche or Volkswagen: All of them use thermal windows - ostensibly for the purpose of engine protection. In doing so, they refer to Article 5, Paragraph 2, Sentence 2, No. 1 of EC Regulation No. 715/2007, which allows the use of defeat devices if they serve to ensure the safe operation of the vehicle and protect the engine.

No exception to the ban on switch-off devices for thermal windows

Numerous courts and the Advocate General of the European Court of Justice (ECJ) have already determined that this extremely extensive interpretation of the exception is not legal. It can be assumed that both the ECJ and the Federal Court of Justice (BGH) will definitely declare thermal windows illegal.

Heidelberg Regional Court awards VW customers as much money as the vehicle cost

This view was also followed by the Heidelberg Regional Court in the case of a VW T5 Transporter 2.0 I TDI of emissions class 5, in which the scandal engine EA189 with thermal window is installed. The plaintiff had purchased the vehicle used in 2015 for 58,500 euros. The court found that the vehicle did not have a permanently safe operating license due to the thermal window. The vehicle owner is therefore threatened with considerable damage - namely the decommissioning of the diesel. Volkswagen has thus intentionally and immorally harmed the buyer of the T5 in a particularly reprehensible manner. The verdict: VW must take the vehicle back and pay the injured party around 49,900 euros in damages after deducting compensation for use. In addition, the plaintiff was awarded tort interest of 8,600 euros. The bottom line is that he will receive as much money as he paid for the VW Transporter (May 29, 2020, case number 4 O 199/19).

VW fails with cover-up tactics

The car manufacturers usually remain silent about details about engines and shutdown devices. VW failed to provide information about the control software in the T5 before the Heidelberg Regional Court. The question of why the thermal window fulfills the requirements for an exception to the ban on defeat devices was also left unanswered by the car manufacturer in two oral hearings - even though the court ordered it to meet its "secondary burden of proof" by means of a conditional order.
With this cover-up tactic, the car manufacturers are making things easy for themselves - and are brazenly ignoring the law. In principle, the injured car buyers, as plaintiffs, are subject to the burden of proof. They would have to prove whether a defeat device in their diesel is effective, how it works, to what extent it represents damage and who is responsible for it. But this is hardly possible for the plaintiffs because they do not have detailed knowledge of engines, software and decision-making processes.

What does the “secondary burden of proof” mean?

In such cases, the "secondary burden of proof" comes into play: If the plaintiff lacks information about a fact - in this case: the defeat device - the defendant, i.e. the car manufacturer, must substantiate its argument with more detailed information. This means that car companies cannot simply deny that they have installed a defeat device or claim that it is legal. They must provide substantive information on this. Accordingly, the Heidelberg judge made it clear: "Volkswagen made the strategic decision to obtain EC type approval for all vehicles of its group companies equipped with the thermal window (...) by deception without the material requirements for this being met."

"Now Daimler is also threatened with a diesel debacle. It is high time that the perfidious procedural strategy and the clean-cut image were put to rest. The company relies on diesel for many of its diesel cars. 'thermo window' which are intended to conceal emissions values; hundreds of thousands of vehicles have already been recalled as a result. These illegal switch-off devices are a clear fraud against customers. We advise affected customers to have their individual claims examined by a lawyer."

Partner Dr. Marco Rogert