Fahrzeughersteller erneut in Erklärungsnot

The Federal Court of Justice (BGH) has judgment of July 13, 2021 – this was about a Mercedes Benz – decided to refer the case back to the Court of Appeal for a new hearing.

A success for the plaintiff we represent. The Koblenz Higher Regional Court will now make a new decision taking all circumstances into account.

The reason: The appeal court did not sufficiently investigate the plaintiff's rejected argument that the exhaust gas purification of his vehicle was controlled by an inadmissible software function. The software function recognizes whether the vehicle is on the test bench and activates an exhaust gas purification mode that optimizes the emission of nitrogen oxides for the test bench. Such test recognition software could in principle be considered as a starting point for the assumption of immoral behavior and a resulting claim for damages. However, the appeal court did not pay any attention to these software manipulations, which were described in detail by the plaintiff's representatives - wrongly, as the BGH has now ruled.

A factual statement is already conclusive if facts are presented which, in conjunction with a legal provision, are suitable and necessary for this provision to be considered fulfilled. The facts must therefore be presented in such a way that a violation of the plaintiff's rights appears possible.

A statement may only be considered irrelevant if the party makes arbitrary allegations “out of the blue” without any tangible evidence.

The plaintiff's factual argument that there are differences between nitrogen oxide emissions under test conditions and under normal operating conditions is therefore not sufficient. However, the plaintiff's claim that a specifically named defeat device is installed in his vehicle cannot simply be regarded as irrelevant for procedural purposes, since sufficient explanations were given on this in the appeal court.

The BGH's ruling makes it clear that courts cannot simply disregard the plaintiffs' arguments regarding illegal switch-off devices. This decision makes consumers' chances of success appear promising.

Impact of the BGH decision on proceedings against Volkswagen AG

Vehicles with the engine type EA288 Volkswagen AG's engines use various measures to process and treat exhaust gases. VW now openly admits to having installed a so-called driving curve recognition system, i.e. pre-installed parameters for detecting a test bench, in vehicles with this type of engine. Nevertheless, the Federal Motor Transport Authority has to date issued mandatory recalls for just two vehicle models with the EA288 diesel engine, the successor to the former "scandal engine" EA189. A fact that has repeatedly made it difficult for plaintiffs' representatives in court to win claims for damages for injured vehicle buyers due to these manipulations. However, the Federal Court of Justice's once again clearly expressed requirements for a plaintiff's statement and the determination of when this is already to be considered significant should give the specialized law firms a boost even in proceedings without a mandatory recall by the Federal Motor Transport Authority.

“Diesel scandal 2.0” surrounding the EA288 engine continues to gain momentum

Only recently, the Naumburg Higher Regional Court ruled in a EA288 procedure expressed its intention to award damages to the plaintiff, who is also represented by us. (Decision of the Naumburg Higher Regional Court of July 19, 2021, Ref. No. 8 U 11/21).

The plaintiff relied on reports and internal planning documents commissioned by Volkswagen AG itself, which confirm in black and white the existence of the test bench recognition software and additional switching logics. This switching logic sets the engine software so that the vehicle on the test bench uses an optimized exhaust gas purification strategy with an increased exhaust gas recirculation rate and thus complies with the legally prescribed limits. In real driving on the road, however, the engine software selects a modified exhaust gas purification strategy.

The recently published documents as well as a report obtained by VW AG itself confirm that Volkswagen developed and produced the engine with different operating strategies for the SCR catalyst.

The decision of the OLG Naumburg as well as many other judgments of various regional courts show that even in the case of vehicles with the EA288 engine type, there are grounds for immoral conduct on the part of VW AG and a resulting claim for damages.