Liability against manufacturers for simple negligence

"In the diesel emissions scandal, the European Court of Justice (ECJ) caused a stir today, Tuesday, March 21, 2023, with a leading decision (C-100/21) on the third-party protective effect of the regulations in the European Directive 2007/46/EC and will thus initiate a turnaround. The ECJ finds that the Union law regulations on the registration of motor vehicles in road traffic protect third parties insofar as they also concern the protection of the individual interests of citizens of the European Union. This is so explosive because under German law, the claim arising from the unlawful violation of a protective law was - obviously wrongly - rejected by the German courts (Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007). This provision - unlike other grounds for claims - gives the injured party a claim for damages if a protected legal interest is negligently violated. Accordingly, there is no need to prove that the defendant acted intentionally. In the "diesel proceedings", the defendant regularly claims that it could have relied on statements from the Federal Motor Transport Authority, which is why it cannot be accused of intent. In any case, in my view, there is an accusation of negligence, because the manufacturer itself is obliged to comply with the requirements of European law. Nowadays, it has entire departments that deal with compliance and it could and should have recognized that its own actions violated the goals and requirements from Brussels," explains attorney Dr. Marco Rogert.

The Federal Court of Justice (BGH) assessed the question of the general illegality of thermal windows differently some time ago. However, it has recently suspended several ongoing proceedings on the grounds that it wants to wait for a decision from the ECJ in order to "to provide the courts of first instance and the courts of appeal dealing with diesel cases with supreme judicial guidance as soon as possible following a decision of the Court of Justice." (Press release dated July 1, 2022, ref. VIa ZR 335/21).

Simplified enforcement of claims ffor plaintiffs

"The Federal Court of Justice has therefore now received the binding instructions to apply the basis of claim under Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007 in the exhaust gas scandal complex in addition to the previous basis of claim based on the allegation of intent and to assess temperature-controlled switch-off devices extremely critically. This makes it easier for the claimants to enforce their claims. It is also not to be expected that the Federal Court of Justice will ignore this decision, since by postponing the announcement dates in the case in question it has indicated that it considers the ECJ decision to be binding and preemptive in such cases," says Dr. Rogert, assessing the scope of the RuGH ruling.

In the overall view of these rulings, this means that, in any case, if the temperature-controlled switch-off device results in the exhaust gas purification system being switched off for a large part of the year, there is generally a right to rescission. This applies regardless of the manufacturer. "Due to the purpose of the switch-off device, which is to be used in reality, this requirement should generally be met. The complex programming of a switch-off device that only kicks in at outside temperatures below -20 and above +70 degrees Celsius would be pointless," says the R&U legal expert.

Higher chance of success ffor injured consumers

"For owners of vehicles with combustion engines that are no more than ten years old, this decision means, in my opinion, that enforcing claims for damages is possible with a significantly higher chance of success than before this decision," concludes Dr. Rogert.

In the Court's rulings in cases C-128/20 | GSMB Invest, C-134/20 | Volkswagen and C-145/20 | Porsche Inter Auto and Volkswagen, the ECJ had already ruled that the temperature-controlled defeat devices used in millions of diesel vehicles were illegal because they violated the relevant EU regulation. "The decisions at the time are particularly explosive because, according to media reports, such defeat devices were also used in vehicles with petrol engines, thus turning the diesel emissions scandal into a combustion engine emissions scandal," explains Dr. Marco Rogert.

The Federal Court of Justice (BGH) assessed the question of the general illegality of thermal windows differently some time ago. However, it has recently suspended several ongoing proceedings on the grounds that it wants to wait for a decision from the ECJ in order to "to provide the courts of first instance and the courts of appeal dealing with diesel cases with supreme judicial guidance as soon as possible following a decision of the Court of Justice." (Press release dated July 1, 2022, ref. VIa ZR 335/21).

ECJ decision is binding for the Federal Court of Justice

Attorney Rogert: "The Federal Court of Justice has therefore now received the binding instructions to apply the basis of claim under Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007 in the exhaust gas scandal complex in addition to the previous basis of claim based on the allegation of intent and to assess temperature-controlled switch-off devices extremely critically. This makes it easier for the claimants to enforce their claims. It is also not to be expected that the Federal Court of Justice will ignore this decision, since by postponing the announcement dates in the case in question it has indicated that it considers the ECJ decision to be binding and preemptive in such cases."

Rogert & Ulbrich recommends

Benefit from the ECJ decision and initiate the procedure nowto be compensated even faster. We advise you free of charge and without obligation.

Der Beitrag EuGH stärkt die Verbraucherrechte im Abgasskandal und bewertet das Thermofenster als rechtswidrig erschien zuerst auf R&U.

The background: On 2 June 2022, ECJ Advocate General Athanasios Rantos made it clear in a diesel case that consumers are entitled to compensation if their vehicles unauthorized shutdown devices tampering with the exhaust gas purification system. The Advocate General thus aims to protect the interests of vehicle buyers. Purchasers should have a claim for compensation against the manufacturer if an illegal defeat device is installed in the vehicle. According to Rantos, the calculation of the compensation claim should also ensure that the compensation claim corresponds to the damage incurred.

If the ECJ follows the Advocate General's opinion, the mere presence of an inadmissible defeat device will soon be sufficient for a claim for damages and the hurdle for a conviction would be considerably lower than before.

Liability against manufacturers in the event of simple negligence?

The initial case concerns a  Mercedes-Benz C 220 CDI, in whose exhaust gas recirculation system the so-called  "thermo window" was implemented. The buyer filed a lawsuit for damages before the Ravensburg Regional Court (LG).

This "thermal window" regulates the exhaust gas treatment system depending on the outside temperature. If the temperature drops below the value specified by the manufacturer, the exhaust gas treatment system is deactivated. This leads to an increase in nitrogen oxide (NOx) emissions during road use.

According to the assessment of the Ravensburg Regional Court, the thermal window constitutes an inadmissible defeat device. The question now arises whether a claim for damages based on tortious liability against the vehicle manufacturer can also be considered in cases of simple negligence. Mercedes-Benz does not appear to have acted intentionally. However, to date, the Federal Court of Justice has only affirmed the conviction of the vehicle manufacturer if there was an immoral, intentional damage pursuant to § 826 BGB However, Advocate General Rantos disagrees with this view. In order to protect the interests of individual vehicle purchasers, even negligence should be sufficient grounds for a claim for damages.

In order to consider liability for simple negligence, the Union regulation on EC type-approval, which prohibits defeat devices, would have to aim to protect the interests of individual purchasers as well. The interest of the individual purchaser should therefore be particularly protected if he unknowingly purchases a vehicle with a impermissible shutdown device acquired.

Rogert & Ulbrich recommends

If the ECJ agrees with Rantos' opinion, the automotive industry will likely face another wave of lawsuits. It therefore remains exciting to see how the ECJ will decide. If the Advocate General makes a ruling, it could potentially lead to the recall of every vehicle in the future. The so-called thermal window is installed in virtually every diesel vehicle from all manufacturers, and many manufacturers even publicly admit this. Therefore, initiate the procedure nowto benefit even faster from the pending ECJ decision. We advise you to act quickly and to get advice from us.

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The regional court confirmed that an impermissible switch-off device was present. A switch-off device is therefore present when the engine control software influences the function of part of the emissions control system in order to improve the exhaust gas values on the test bench. The so-called "driving curve recognition" is installed in the vehicle's engine. This is used to recognize the test cycle and controls the vehicle's exhaust gas aftertreatment. It ensures that the vehicles recognize the test bench and comply with the legally prescribed limits. In real driving on the road, however, the limits are exceeded many times over. 

Skoda Octavia has an illegal switch-off device

VW AG continues to believe that the emission values are identical with and without curve detection. This view contradicts the installation of the defeat device, as the limits would then be complied with even if it were deactivated. Defeat devices could then be installed at will and it could be claimed afterwards that they had no effect on the emission values.

In light of all of this, the regional court considers the presence of an impermissible switch-off device to be a given. Software that distinguishes between two operating conditions in order to simulate false emissions values constitutes immoral damage.

Rogert & Ulbrich recommends all Skoda drivers

That is why we recommend that every driver of a diesel vehicle with Euro 6 emissions class from the Volkswagen Group – be it Audi, Seat, Skoda or Volkswagen – seek legal advice.

Please feel free to take advantage of our free and non-binding initial consultation and have your claim checked individually.

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The plaintiff had the VW Beetle 2.0 TDI Cabrio Bought used in July 2018 for € 29,770. The car is equipped with the engine EA288 equipped with a NOx storage catalyst that complies with the Euro 6 emissions standard.

Concession by non-appearance in diesel scandal 2.0?

The plaintiff claimed damages due to the use of an illegal switch-off device. The Senate saw the failure of VW's lawyers to appear as a concession. Due to a switch-off device, the vehicle only complies with the legally prescribed limits on the test bench. Software for the purpose of detecting the test bench is installed in the form of curve detection in the corresponding vehicles with the EA288 engine type. In real driving on the road, however, the limits are exceeded many times over.

In April 2021, the Naumburg Higher Regional Court had already sentenced VW AG to pay damages of €20,885 for a Golf VII with the EA 288 engine (judgment of April 9, 2021, case number 8 U 68/20).

Lawsuits in the diesel scandal 2.0 about the EA288 promising

The consumer-friendly jurisprudence is becoming more and more accepted in the courts. Your chances in court against VW AG are better than ever. Further information on the subject and a non-exhaustive overview of the judgments passed can be found on our website at https://ru.law/expertise/emissions scandal/ea288/. 

Please feel free to take advantage of our free and non-binding initial consultation and have your case examined individually. 

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VW would have the legal proceedings regarding the engine EA288 - the successor to the scandal engine EA189 - in the bud and do not want to take responsibility at all. With a large-scale media campaign that was intended to suggest to drivers of newer diesel models from Volkswagen and its subsidiaries how hopeless claims for damages are. But as more and more consumers find their way into the courtrooms, there will also be more consumer-friendly judgments. The trend is increasing - lawsuits have been won more and more often in the recent past.  

For example, on Bonn Regional Court (judgment of October 21, 2021, case number: 19 O 172/20)There, VW AG was ordered to pay the plaintiff € 13,649 against return of the vehicle. This was a Audi A3 2.0 TDI Sportback, which the plaintiff had bought as a used car for a purchase price of €27,270. The Bonn Regional Court sees damage to the buyer as a result of the conclusion of the purchase contract. This damage cannot be remedied even by installing a software update.  

EA288: Courts follow suit – things are getting tight for VW

The Düsseldorf Higher Regional Court rejected VW AG's appeal directly in its decision of September 16, 2021, ref.: I-20 U 14/21. Rather, the Higher Regional Court, in agreement with the court of first instance, assumes that the EA288 engine installed in the vehicle in question was equipped with "cheating software". The Higher Regional Court considered the plaintiff's statement that the EA288 engine is equipped with a driving curve detection system to be sufficiently substantiated. The engine is equipped with a switch-off device that detects when the car is on the test bench and then reduces the emissions values. There is no other way to assess the facts. The arguments put forward by Volkswagen were not sufficient for the judges to overturn the first instance judgment of the Duisburg Regional Court. A well-known method, then, and no different from the EA189 engine. 

What is particularly pleasing in this case is the fact that the Senate has rejected the appeal by a unanimous decision. It only does this if the appeal apparently has no prospect of success.  

It is becoming increasingly clear that consumers are not necessarily fighting a losing battle against VW AG from the outset - even if Volkswagen wants to make consumers believe this with its campaign against EA288 lawsuits. The bill only comes at the end and anyone who does not try to take action against the injustice has already lost. 

EProspects of success of EA288 lawsuits are steadily increasing

That is why we recommend that every driver of a diesel vehicle with Euro 6 emissions class from the Volkswagen Group – be it Audi, Seat, Skoda or Volkswagen – seek legal advice. For constant dripping wears away the stone. 

Please feel free to take advantage of our free and non-binding initial consultation and have your claim checked individually. 

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VW increasingly under pressure 

In fact, the public prosecutor's office in Braunschweig seems to have a different opinion than Mr Diess. A fine notice of EUR 1 billion, which has been received by the editors of Focus Online and which was accepted and paid by Volkswagen AG, does not only apply to the known EA189 vehicles from Volkswagen, Audi, Seat and Skoda with up to 2.0 l displacement but also on the successor engine EA 288 Gen 3, which was installed in vehicles from the same manufacturers. Volkswagen had always stressed that the sanctions only affected the US market. However, the text passages published by Focus Online prove the opposite.

This means that the ad hoc announcement by Volkswagen AG, which stated that no other vehicle types had been manipulated, is also incorrect. This could have enormous consequences, as quite a few courts believe that the ad hoc announcement led to the immorality being eliminated. However, if the announcement was again a deception, this argument will not hold up.

In addition, thousands of judgments would be objectively wrong and the question arises whether one would not have to assume further immoral damage and procedural fraud if the manipulation of the EA288 Gen 3 turned out to be true.

Prospects for success in the “diesel scandal 2.0” are steadily increasing

It remains exciting in this economic crime. However, due to the published findings of the Braunschweig public prosecutor's office, the chances of EA288 buyers to get compensation for their losses have, in our opinion, improved massively. compensated Further information on the subject 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 checked individually.  

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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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