The Higher Regional Court of Oldenburg (OLG) made it clear in its advisory decision of 1 July 2021, case no. 14 U 91/21, that the plaintiff represented by us had provided tangible evidence of the use of an inadmissible defeat device in his vehicle with the engine EA288 delivered.
The built-in function distinguishes between two operating modes, one of which is active exclusively on the test bench and ensures that the prescribed limits are adhered to. In real driving conditions, however, the limits are still exceeded. The test bench is controlled by a so-called "test bench" (test bench). curve detection The judges of the Higher Regional Court consider all of this to be obvious and reject Volkswagen AG's denial as insufficient. They argue that the company is merely "hiding" behind previous measurements by the Federal Motor Transport Authority (KBA).
The OLG Naumburg also Decision of 19 July 2019, Ref. No. 8 U 1/21, that it intended to award the plaintiff, represented by the law firm Rogert & Ulbrich, a claim for damages.
The installed shutdown device in the engine of type EA288 EU6 with SCR catalyst is also considered inadmissible here. The court considered the plaintiff's factual submissions to be sufficiently substantiated. Recently published internal documents from Volkswagen AG as well as expert opinions obtained by the company itself also show that different operating strategies exist. With the help of the so-called driving curve recognition, the test bench is recognized, whereupon a specific operating strategy is activated, which in turn increases the exhaust gas recirculation rate on the test bench. The aim here is to reliably comply with the legally prescribed limits only on the test bench. How switching between the various operating strategies affects the vehicle's emissions behavior in real driving conditions on the road is irrelevant. The mere fact that these functions were intended solely to bring about a different exhaust gas purification behavior during the test bench than is the case in real driving conditions already makes the defeat devices inadmissible.
More and more courts are following suit – things are getting tighter for Volkswagen
The Higher Regional Court of Naumburg had already ruled in parallel proceedings in its judgment of April 9, 2021, case no. 5 O 90/20, that there was immoral intentional damage in a car equipped with an EA288 engine because an inadmissible defeat device in the form of a driving cycle detection system was used.
Now the LG Bielefeld is making its third consumer-friendly decision in the matter EA288 after:
In their judgment of 21 July 2021, case no. 8 O 467/20, the judges awarded the plaintiff a claim for damages. The subject matter of the dispute was a VW Golf VII 1.6 TDI SportsvanThe plaintiff's vehicle is equipped with an EA288 EU6 engine with a NOx storage catalyst. It also features a curve detection system.
The Bielefeld Regional Court considers it immoral conduct that the engine control software is deliberately and intentionally programmed to ensure compliance with statutory emissions limits only on the test bench using an illegal defeat device. The court also finds Volkswagen AG's objections insufficient. The driving curve recognition was intended to achieve a better emissions value than in real-life driving on the road through test recognition during the type approval process. VW thus deliberately deceived the buyers of these vehicles. The plaintiff, in fact, trusted that the vehicle in question and the engine installed in it were proper and compliant with the law.
Thermal window in EA288 diesel vehicle entitles to withdrawal from the purchase contract
In its advisory ruling of August 9, 2021, case no. 12 U 4671/19, the Nuremberg Higher Regional Court ruled that the case law of the European Court of Justice (judgment of December 17, 2020, case no. C-692/18), and thus our submission, should be followed, according to which a defeat device in the context of exhaust gas recirculation is inadmissible under European law. In these proceedings, the purchaser of a Seat vehicle with an EA288 diesel engine is asserting warranty claims against the vehicle dealer.
Finally, according to the Nuremberg Higher Regional Court, the vehicle was deemed to be defective due to the undisputed presence of a "thermal window" in the vehicle with the EA288 engine type at the time of delivery. This, in turn, entitled the plaintiff to withdraw from the purchase contract.
BGH rules: Claim for compensation for the loss in value when purchasing a VW diesel with test bench recognition software
In its judgment of July 6, 2021, case no. VI ZR 40/20, the Federal Court of Justice ruled that the purchaser of a Volkswagen with a diesel engine equipped with test bench recognition software may be entitled to compensation for the "minimum value" - so-called minor damages - from the vehicle manufacturer.
The vehicle in dispute in the proceedings, a VW Passat Variant, which is equipped with the 2.0-liter diesel engine of the type EA189 EU5, has software that detects whether the vehicle is in test operation on the test bench and then optimizes the nitrogen oxide emissions.
Such software for the purpose of test bench recognition is also installed in vehicles with the EA288 engine type in the form of driving curve recognition, so a parallel can be drawn here with the EA288 engine type. The Federal Court of Justice's ruling should therefore further increase the chances of success for cases involving the successor engine to the "scandal engine."
Prospects for success in the “diesel scandal 2.0” are steadily increasing
From all the aforementioned decisions, as well as numerous other judgments and rulings from various regional and higher regional courts, it is clear that the prospects of success in proceedings concerning the EA288 engine type are steadily increasing. Further information on the topic, as well as a non-exhaustive overview of judgments, can be found on our website at https://ru.law/expertise/abgasskandal/ea288/.
Please feel free to take advantage of our free and non-binding initial consultation and have your claim examined individually.
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