EA189 Abgasskandal Motor - Verbraucherschutz Blog - R&U

Dieselskandal in 2022 – Wie geht es weiter?

Marco Rogert — Wed, 05 Jan 2022 09:27:29 +0000

What will happen next in the diesel emissions scandal? The Federal Court of Justice (BGH) has already clarified some fundamental questions in the diesel scandal in 2021. But there are still more events planned in Karlsruhe this year. On February 10, 2022, it will be clarified whether claims for damages have expired and what the remaining damages are. At the hearing, 5 cases will be dealt with directly and a decision will be made as to when the three-year limitation period for claims for damages by the vehicle buyer against Volkswagen AG began and whether, in the event of the limitation period, there is a claim for so-called residual damages under Section 852 S. 1 of the German Civil Code (BGB).

The affected vehicles were all purchased second-hand and diesel engines of the EA189 series (EU 5) equipped.

Does VW have to pay remaining compensation?

In the so-called "residual damages claim" According to § 852 BGB, this is a claim based on unlawful acts, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.

The claims from the 5 proceedings were rejected in the previous instances due to the statute of limitations. The statute of limitations began in 2015, since from October 2015 onwards the plaintiffs were at least grossly negligent in their ignorance of the facts required for the statute of limitations to begin. The diesel scandal was omnipresent in media reports, so the plaintiffs must have been aware of it. There is also no claim under Section 852 S. 1 of the German Civil Code, since this claim does not apply to used cars.

However, it remains questionable whether the courts can assume that the plaintiffs knew about the diesel scandal simply because of the extensive media coverage. Therefore, there is a need for further clarification in the diesel scandal, on which the judges of the Federal Court of Justice will comment.

It also remains questionable how Karlsruhe will comment on the claim under Section 852 S. 1 of the German Civil Code (BGB) with regard to used cars. In some cases, residual compensation is granted for used cars. In the case of a used car deal in which the plaintiff purchases the vehicle from a used car dealer or a private vehicle owner, the defendant has not gained anything. However, this should not preclude the claim for legal damages. The defendant has not gained any income directly from the plaintiff, but rather from the original contractual partner. This should be sufficient to justify a claim for residual damages. When the vehicle was resold by the original purchaser to the plaintiff, the inflow of assets was maintained.

It will therefore remain exciting in 2022 to see how the Federal Court of Justice will comment on this and how the diesel scandal will continue.

Rogert & Ulbrich recommends for 2022

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already been able to numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

BGH: Anspruch auf ein mangelfreies Ersatzfahrzeug

Marco Rogert — Wed, 22 Dec 2021 09:03:57 +0000

In its ruling of December 8, 2021, the Federal Court of Justice (BGH) ruled that the buyer of a defective new vehicle can, within the scope of his warranty rights, only demand the replacement delivery of a successor model that has now been manufactured against an appropriate payment. But this is only possible if the vehicle has a significant added value compared to the vehicle originally purchased (case number VIII ZR 190/19).

In this specific case, it concerns the claims of a buyer due to an illegal switch-off device in a defective new vehicle in the emissions scandal. The vehicle in question here is a VW Caddy III with the diesel engine EA189, which the buyer had purchased in June 2015 for a purchase price of € 19,910. In December 2016, a software update was to be installed, which was rejected by the buyer. Instead, in May 2017, the buyer requested that the seller replace the vehicle with a defect-free new vehicle, the successor model VW Caddy IV. This replacement delivery was rejected by the seller due to the disproportionate costs compared to installing the software update.

Further development of the BGH ruling of 21.07.2021

On July 21, 2021, the Federal Court of Justice had already ruled that the owners of illegally manipulated vehicles are entitled to the delivery of a defect-free replacement vehicle even if the respective dealer had previously offered them the installation of a software update (judgment of July 21, 2021, case number VIII ZR 254/20 et al.). With the current ruling, the Federal Court of Justice initially confirmed its ruling from the summer.

According to the BGH, a replacement delivery of a successor model should only be made with an appropriate additional payment if the list price of the new vehicle exceeds the price of the old vehicle by at least 25 percent. The buyer would then normally have to make an additional payment of one third of the difference. This should not cause too much damage to the dealer.

Furthermore, the replacement delivery of a new vehicle free of defects should not be impossible simply because a successor model has since come onto the market instead of the vehicle model originally purchased.

With regard to the question of the disproportionate costs of installing a software update, the BGH has ruled that subsequent delivery can only be refused if the defect in the form of the impermissible shutdown device is completely, permanently and professionally remedied. If consequential damage occurs as a result of the software update, the defect in question has not been remedied. The seller bears the burden of explanation and proof for these circumstances.

BGH: Rogert & Ulbrich continues to see positive prospects

Since 2007, we have been fighting against large corporations on behalf of consumers nationwide. Due to a large number of recent positive judgments, the chances of success for consumers have continued to increase enormously. Our initial consultation is free and non-binding. Get advice without obligation.

Verbraucherfreundliches Urteil zum Restschadensanspruch

Marco Rogert — Tue, 16 Nov 2021 11:43:34 +0000

In Wolfsburg, after the first judgments of plaintiffs who filed their lawsuit in 2020 or later without taking prior measures to stop the statute of limitations from running out, have almost certainly popped a few champagne corks. The claim for damages against the Volkswagen Group, confirmed by the Federal Court of Justice (BGH) in May 2020, was rejected by the majority of the regional courts on the grounds of limitation, and the "residual damage claim" under Section 852 of the German Civil Code (BGB) intended by the legislature for such cases was declared inapplicable if the car was bought second-hand. However, if the car is a new car, the regional courts saw it differently in most cases and confirmed the claim, but had difficulty with the amount of damages.

In a case we conducted before the Higher Regional Court (OLG) Stuttgart, the 1st Civil Senate confirmed the first instance judgment in a very clear and precisely formulated judgment and rejected the appeal of the VW AG In addition, the Senate also happily cleared up some of the 'ifs' and 'buts' in Volkswagen AG's argument and sentenced Volkswagen to pay damages and to take back the defective vehicle as in a conventional procedure without limitation period issue (OLG Stuttgart judgment of November 9th, 2021, case number 1 U 379/20).

The plaintiff had bought the car directly from Volkswagen AG in 2013 for around €36,000 as a new car. However, the lawsuit against Volkswagen was not filed with the regional court in Ellwangen until August 2020. Actually, too late, as the Senate also confirmed in its judgment.

Residual Damage Claim – Hopeful Tones

But only actually, because the legislator has here provided the injured party with another claim – the “remaining claim for damages“ according to § 852 BGB. This is a claim based on tort, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.

The main purpose of this provision is to ensure that a person who has caused harm to another person through an unlawful act does not continue to enjoy an unlawfully obtained advantage.

Contrary to the statements of Volkswagen AG, the application of Section 852 sentence 1 of the German Civil Code cannot be excluded on the grounds that the plaintiff did not suffer any economic loss as a result of the obvious immoral damage. Section 852 of the German Civil Code extends the tort claim into the statute of limitations, and the provisions of Section 852 of the German Civil Code regarding the claim for residual damages do not change the liability requirements.

The Senate did not accept the argument put forward by VW that there was no particular risk of litigation due to the possibility of a model declaratory action and that a claim for residual damages should therefore not be considered. This would reverse the aim expressly stated by the legislature that the illegally obtained advantage does not remain with the person who caused the damage in cases of limitation. In doing so, the Senate referred directly to the statements in the Federal Printed Paper on the introduction of the model declaratory action: "If the parties cannot reach an agreement - for example in the context of out-of-court dispute settlement - and the parties concerned refrain from filing a lawsuit, the illegally obtained profit remains with the provider, who thereby gains a competitive advantage over law-abiding competitors."

In the opinion of the Senate, the amount of the claim should be quantified exactly as in the usual lawsuits in the emissions scandal - and should not be limited to the profit made. In this case, the plaintiff was awarded just under €20,300 for his vehicle.

Residual damage claim gives legitimate hope

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

BGH-Beschluss zum sofortigen Rücktritt vom Kaufvertrag im Dieselskandal

Marco Rogert — Thu, 04 Nov 2021 14:23:11 +0000

By order of 29 September 2021, ref.: VIII ZR 226/19, the Federal Court of Justice (BGH) decided to refer the case back to the Higher Regional Court (OLG) Munich for a new hearing. The case concerned a VW Golf Plus 1.6 TDIA success for the plaintiff, as the Munich Higher Regional Court must now decide again, taking all circumstances into account, whether an immediate withdrawal from the purchase contract in the diesel scandal is possible.

The reason: The Munich Higher Regional Court should have investigated the plaintiff's claim that the software update led to consequential damage and that the vehicle had suffered a reduction in value. The plaintiff had already offered evidence for his claim in the first instance through an expert report. This expert report was intended to prove that the vehicle in question had the defect of emissions scandal and thus results in a significant loss of value. The software update could also cause damage to the vehicle. However, for whatever reason, the court did not address this and dismissed the appeal by order because it was obviously hopeless. The BGH sees this as a violation of the plaintiff's rights, as his arguments were not sufficiently taken into account.

Diesel scandal: Impossibility of subsequent performance

Withdrawing from the purchase contract in the diesel scandal is not possible without setting a deadline for remedying the defect. However, the BGH did not consider setting a deadline for subsequent performance to be necessary, namely if the remedy was unreasonable for the plaintiff. The vehicle's defect is due to the fraudulent conduct of VW AG. Therefore, the plaintiff does not have to rely on VW AG to remedy the defect - by carrying out the software update. After all, negative effects on the vehicle are entirely possible and likely.

The Higher Regional Court must first clarify, through appropriate findings and expert reports, whether and to what extent the software update offered by the seller actually leads to the consequential damage claimed by the buyer.

Diesel scandal: Rogert & Ulbrich recommends

We at Rogert & Ulbrich recommend having your claims checked. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

Restschadensersatzanspruch greift auch bei Gebrauchtwagen

Marco Rogert — Fri, 10 Sep 2021 07:54:59 +0000

So far, courts are increasingly ruling in favour of complaining consumers of new cars, even despite the claims being time-barred and speak to them a so-called “remaining claim for damages" to.

The Stade Regional Court has now ruled in its judgment of 26 August 2021, file number 5 O 129/21, that the plaintiff is entitled to compensation in the case of a used car. The vehicle in question is a used VW Sharan with the engine type EA189The claim had already expired.

“Residual damages claim” can now also be asserted within 10 years for used cars

The remaining claim for damages is intended to enable the injured party to claim or collect the profit made by the manufacturer even after the statute of limitations has expired. The law refers to this as "gained at the expense of the injured party". This claim expires within 10 years of the claim arising - on the same day.

In the case of a used car deal, where the plaintiff purchases the vehicle from a used car dealer or a private vehicle owner, the defendant has not gained anything. However, this should not preclude the claim for legal damages. The defendant did not gain any income directly from the plaintiff, but rather from the original contractual partner. This should be sufficient to justify a claim for residual damages. When the vehicle was resold by the original purchaser to the plaintiff, the inflow of assets was maintained.

Rogert & Ulbrich recommends

We at Rogert & Ulbrich recommend having your claims examined. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

BGH bestätigt nun auch Differenzansprüche nach Weiterverkauf

Marco Rogert — Tue, 20 Jul 2021 13:38:36 +0000

With Judgment of 20 July 2021, VI ZR 575/20 The Federal Court of Justice ruled that a claim for damages also exists when a vehicle affected by the emissions scandal is resold. According to the Karlsruhe judges, this does not conflict with the claim for damages that is generally given. However, the proceeds from the sale must be offset against the compensation.

Claim for damages does not lapse

This means that you can still sue even if you have already sold your vehicle. In the specific case before the Federal Court of Justice, the plaintiff, former owner of a VW Touran with the EA189 scandal engine, sold the vehicle in question during the ongoing proceedings. However, this did not prevent the judges of the Federal Court of Justice from awarding the plaintiff damages. The only thing was that she had to allow the sales price to be offset against the compensation to which she was entitled.

Rogert & Ulbrich continues to advise you to file a lawsuit – have your claims examined

Have you already sold your vehicle affected by the emissions scandal? – Nevertheless, have your claims checked. We have already been able to obtain a number of positive judgments despite the vehicle being sold.

Der Abgasskandal geht in die zweite Runde!

Marco Rogert — Thu, 03 Dec 2020 16:21:04 +0000

ARD reports on new clues in the VW diesel scandal.

After doubts about Volkswagen's honesty with regard to the use of a defeat device for the engine with the internal designation EA288 also increased in the courts, the ARD also reported again in a report in the magazine Report on December 1, 2020 about defeat devices to comply with the emission limits for this engine.

Internal documents from the company have come to light which clearly show that, at least until mid-2016, software for manipulating exhaust emissions on the test bench was also installed in this engine.

The EA288 is the successor engine of the scandal engine EA189 – the fraud engine that emissions scandal The EA288, like the EA189, is used in numerous models across the entire Volkswagen Group. It is available in the emission classes Euro5, Euro 6 and Euro 6d-temp.

The case law on EA288 has also changed recently. While initially the lawsuits were mostly dismissed by the regional courts due to a lack of a recall notice, more and more courts have now granted the lawsuits.

For example, LG Düsseldorf AZ 11 O 190/18, LG Offenburg AZ 3 O 38/18, LG Regensburg AZ 73 O 1181/19, LG Munich I AZ 3 O 13321/19, LG Duisburg AZ 1 O 1181/19 , LG Heilbronn 6 O 257/19; LG Darmstadt Az 13 O 88/20, LG Potsdam Az 11 O 167/20, LG Munich II Az 3 O 13321/19.

In the second instance, Volkswagen is also facing colder weather.

The Higher Regional Courts of Celle and Oldenburg did not accept Volkswagen AG's feeble arguments and issued orders for evidence that promise to shed light on the matter.

In a case we conducted, the 7th Senate of the Celle Higher Regional Court ordered in a notice and evidence decision dated July 14, 2020 (case no. 7 U 532/18) that the Federal Motor Transport Authority must disclose whether Volkswagen had fully and truthfully presented all facts regarding the software used.

If this is not the case and VW has concealed the use of whatever defeat device, then the approval process would have been unlawful and the vehicles in question should neither have been registered nor sold.

TV report: REPORT MAINZ – New clues in the VW diesel scandal

The Higher Regional Court of Oldenburg also issued a order for evidence (Ref. 8 U 188/19) and would like to have an expert clarify whether "in the EA288 engines, the effectiveness of emissions control systems is reduced by the fact that the NEDC test cycle is recognized based on the installed software with the help of physical boundary conditions - the driving curves, the steering angle detection and the time recording - and then corresponding "exhaust gas aftertreatment events" are "placed". In other words, whether manipulative software is also at work here, which helps to comply with the limit values on the test bench.

In both orders for evidence, the Senates rely on the VW-internal “Decision template on the EA288”, which we have introduced in all EA288 proceedings and which shows how exhaust emissions are influenced by the detection of driving cycles.

If you read these documents carefully, it quickly becomes clear that VW has also developed a strategy for complying with emissions limits for the successor engine – albeit exclusively on the test bench.

Information from VW should be treated with great caution.

Offenburg has recognized that VW's statements should be treated with great caution. In a ruling, the VW Group was expressly reminded of its duty to tell the truth:

"In this context, it should be added that there is also concrete evidence that the defendant (VW) did not have the clear conscience it recently claimed regarding the test bench recognition...in the trial, it did not initially admit the test bench recognition, but described it as generally incorrect...in addition, the defendant (VW) denied the explicit question of whether a switching logic was installed in the vehicle. The test bench recognition was only admitted after an explicit written request from the court, whereby the further question of whether any changes were made to normal operation following the test bench recognition was initially answered falsely with a "no."

The judgment of the Darmstadt Regional Court speaks a clear language.

The judgment we won, which was discussed in the TV report, speaks a similar language. The Darmstadt Regional Court completely followed our argument in this case and Volkswagen AG must now take back the Skoda Octavia 2.0l in return for a payment of 20,770 euros. The plaintiff had bought the car new for 24,230 euros in 2017.

In its reasoning for the verdict, the court assumed that the engines from the new EA288 series were equipped with illegal software. This was also programmed in such a way that the exhaust gas recirculation was controlled in two different operating modes.

The emissions scandal goes into the second round!

EA189 Abgasskandal Motor - Verbraucherschutz Blog - R&U

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