Wieder Hoffnung in sogenannten Kauf nach Kenntnis Verfahren

Spectacular verdict of the Cologne Higher Regional Court.

The 20th Senate of the Cologne Higher Regional Court (OLG Cologne of December 18, 2020, case number 20 U 288/19) has given hope again to buyers of 2-liter VW, Seat, Audi and Skoda diesel vehicles who only bought the car after autumn 2015.

The Cologne Higher Regional Court followed the plaintiff and, despite the Federal Court of Justice's ruling of July 30, 2015 - VI ZR 5/20, dismissed the appeal of Volkswagen AG, which had lost in the first instance. This case concerned the lawsuit of a Tiguan driver who had bought his car after the so-called ad hoc announcement from VW in September 2015 but had already installed a software update in December 2016.

"Last year, the Federal Court of Justice seemed to have closed the door to claims from late buyers who bought their vehicle after September 22, 2015. Fortunately, the Cologne Higher Regional Court has now decided in favor of the plaintiff, against the general tendency of the higher courts to blindly adopt the Federal Court of Justice's rulings, i.e. without taking into account the specific arguments in each individual case. This must set a precedent, because the Federal Court of Justice's ruling is based on facts that are inapplicable to many cases and therefore cannot be transferred. We have therefore continued to fight for the rights of those affected - now finally with success!"

Partner Dr. Marco Rogert

Cologne Higher Regional Court gives hope to late buyers, i.e. buyers who only bought their diesel vehicle after autumn 2015

In July 2020, the Federal Court of Justice had still assumed that VW had come clean with this ad hoc announcement and that buyers of 2-litre vehicles with the Euro 5 standard were no longer unsuspecting after this announcement and therefore there was no longer any immoral behaviour on the part of VW, which is the prerequisite for being able to claim damages.

Dr. Rogert: “The Cologne Higher Regional Court now sees this differently. The 20th Senate states in its ruling that the software update not led to a legally compliant condition of the vehicle and Volkswagen AG attempted to conceal this by further manipulating the "On Board Diagnostic System". Therefore, the behavior displayed by VW should continue to be considered immoral and a claim for damages should be made."

Software update does not eliminate the defects in the vehicle and does not lead to legal condition

And the judges at the Cologne Higher Regional Court are even clearer: In the overall context of Volkswagen's conduct, the communication in September 2015 was actually aimed at preserving as much of this innocence (among buyers) as possible, i.e. to continue to deceive them about the manipulation of the vehicles and - in other words - to continue to make them look stupid by promising an update approved by the KBA, which would supposedly eliminate all defects.

The second sentence of the ad hoc announcement, “The new EU 6 diesel-powered cars from the Volkswagen Group currently offered in the European Union meet the legal requirements and environmental standards,” also appears to be less credible in retrospect.

In fact, almost all 3.0 litre diesel vehicle models from VW, Audi and Porsche, in the Euro 6 emissions class, have already been recalled by the KBA due to illegal switch-off devices. Further recalls are currently being issued for the 3.0 litre models in the Euro 5 emissions class. Dr Rogert: And that's not the end of the story. There are also legitimate doubts about whether the successor to the scandalous EA189 engine - the EA 288 - is clean for the group's 2.0 liter diesel models. Here, too, we already have 15 regional courts that have sentenced VW to pay damages in the first instance.

The diesel emissions scandal is constantly throwing up new twists and turns, but it is far from over. Get advice from one of our lawyers.