Abgasskandal Fahrzeuge

The scandal in the emissions scandal - did VW win the BGH ruling on the purchase after ad-hoc notification through process fraud?

/ emissions scandal, judgments / Audi, BGH, EA288, Porsche, VW

New hope for diesel buyers who purchased their vehicle after September 22, 2015.

In its judgment of July 30, 2020, the Federal Court of Justice ruled on the case of a plaintiff who bought his diesel vehicle in August 2016, almost 11 months after the publication of the “ad hoc announcement” by Volkswagen AG.

In contrast to the fundamental ruling in diesel emissions scandal of 05.05.2020, where the Senate had affirmed claims against the Volkswagen Group for intentional immoral damage, the BGH, here the claim for damages. In the opinion of the Senate, “VW's communication of 22 September 2015 is likely to destroy the confidence of potential buyers of used cars with VW diesel engines in the correct exhaust emission technology and to eliminate the innocence in this regard."

In plain English: From this point on, buyers of used VW vehicles with diesel engines could no longer expect a compliant vehicle from the VW Group.

A sentence that you have to let roll around on your tongue in many ways.

Surprisingly, according to the BGH, this statement was not challenged by the plaintiff in the specific case under consideration.

There is no grain of truth in VW’s ad hoc announcement

Original sound partner Dr. Marco Rogert: But that should definitely have been done, in other words, denied – as we lawyers put it! At R & U, we have analyzed the decisive reasons for the Federal Court of Justice's ruling in detail and found that the July ruling on "ad hoc purchases" is based on the assumption that Volkswagen AG had "come clean" with its announcement of September 22, 2015. But VW has not done so - on the contrary!

There is not a shred of truth in the third sentence of the ad hoc communication. It reads: “The software in question does not affect driving behavior, consumption or emissions.”

Original sound partner Dr. Marco Rogert: In the case of the EA 189, the scandalous engine that made the emissions scandal known, no court has since denied that the "complained software" does indeed influence the vehicles' exhaust emissions. It was used for the sole purpose of reducing emissions on the test bench in order to create the illusion that the legal limits were being complied with.

The content of the ad hoc communication was incorrectly worded in order to downplay the scandal

So the willingness of those responsible in Wolfsburg to provide clarification cannot have been that great back then.

Original sound partner Dr. Marco Rogert: Rather, it can be assumed that this content in particular was deliberately formulated incorrectly and incompletely in order to deceive potential buyers and diesel drivers in particular and thus downplay the scandal. The aim was not to inform consumers, but rather to limit the damage to the company.

Criminal charges filed against those responsible at the VW Group – dismissed lawsuits could be reopened

The R & U law firm sees itself as a representative of the interests of its clients – thousands of victims from Germany and abroad – and as an organ of the legal system obliged to make this fact public.

"We have filed a criminal complaint against those responsible at the VW Group. Significant evidence for the false and incomplete ad hoc notification also arises from new findings by the Munich public prosecutor's office and the Federal Motor Transport Authority (KBA)."

Learn more in the Handelsblatt!

Partner Dr. Marco Rogert

We will defend ourselves against all decisions based on this BGH ruling (ad hoc ruling) from July. Even lawsuits that have already been legally dismissed could be reopened in the event of a criminal conviction of VW for fraudulent proceedings.

Almost all Euro 6 diesel vehicle models from VW, Audi and Porsche recalled. Vehicles with the EA288 engine also affected

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 seems less credible today.

In fact, almost all 3.0 liter diesel vehicle models of the brands VW, Audi and Porsche, 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 liter models in the Euro 5 emissions class.

Original sound partner Dr. Marco 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 8 regional courts that have sentenced VW to pay damages in the first instance.

An internal document proves that there was a written instruction to also use the manipulation software used in the scandal engine EA 189 in the EA 288 vehicles - at least until week 22 of 2016.

In retrospect, the idea that the foundation for VW AG's transformation from Saul to Paul in the emissions scandal was laid with the ad hoc announcement in autumn 2015 seems more than refuted and certainly also criminally relevant.

The end of the emissions scandal is still far from in sight.

Here again is the ad hoc announcement from Volkswagen AG dated September 22, 2015:

Volkswagen AG informs:

Volkswagen is working hard to clarify irregularities in the software used in diesel engines. The new cars from the Volkswagen Group with EU 6 diesel engines currently offered in the European Union meet the legal requirements and environmental standards. The software in question does not affect driving behavior, consumption or emissions. This provides clarity for customers and dealers.

Further internal tests to date have shown that the control software in question is also present in other diesel vehicles of the Volkswagen Group. The software has no effect on the majority of these engines.

Vehicles with EA 189 engines are conspicuous, with a total volume of around eleven million vehicles worldwide. A noticeable deviation between test bench values and real driving conditions was only found for this engine type. Volkswagen is working hard to eliminate these deviations with technical measures. The company is currently in contact with the responsible authorities and the German Federal Motor Transport Authority.

To cover necessary service measures and further efforts to regain the trust of our customers, Volkswagen, to set aside around 6.5 billion euros in the third quarter of the current financial year. Due to the ongoing investigations, the assumed amount is subject to estimation risks. The Group's earnings targets for 2015 will be adjusted accordingly.

Volkswagen does not tolerate any violations of the law. The Board of Management's primary goal remains to regain lost trust and prevent damage to our customers. The Group will continuously and transparently inform the public about the further progress of the investigation.

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