OLG Düsseldorf: Haftung der VW AG bei EA897

Marco Rogert — Wed, 02 Mar 2022 07:49:53 +0000

The Higher Regional Court (OLG) Düsseldorf ordered VW AG to withdraw a VW Touareg (with V6 engine) and damages in the amount of € 41,897 (judgment of February 21, 2022, ref. I-9 U 63/20). The plaintiff we represent had purchased the vehicle with the Euro 6 emissions class as a new car for a purchase price of € 65,750. He financed the vehicle with a loan from Volkswagen Bank, which has since been fully repaid. At the time of the oral hearing before the Senate, the VW Touareg had a mileage of 128,966.

The OLG sees the obstruction of the engine type EA897 as was the case with the EA189 engine an immoral act by VW AG. The deception therefore fits seamlessly into the scandal of the VW Group, which became known in 2015 with the engine type EA189.

VW AG is liable for V6 engine produced by Audi AG

Because VW AG itself has assumed responsibility for the EA897 engine and thus also for the absence unauthorized shutdown devices, it cannot withdraw by saying that the engine in question is not its own. The 3-litre V6 and 4.2-litre V8 diesel engines were produced by Audi AG, but VW AG explicitly identified itself as the manufacturer in the EC declaration of conformity. This is especially true since it had already tampered with the EA189 engine type. The presence of further illegal defeat devices in other diesel engines of the VW Group is therefore not a mere coincidence.

The Higher Regional Court sees the deception of putting vehicles with manipulated EA897 engines into circulation as an attempt to achieve higher profits by saving costs.

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Audi muss Abgasmanipulation beim Dieselmotor EA 897 offenlegen

Marco Rogert — Wed, 12 Aug 2020 2:47:00 PM +0000

Informative decision of the Ingolstadt Regional Court regarding the emissions scandal.

What the relevant authorities have largely failed to do so far is now being done by the courts. They are forcing car manufacturers to provide transparency regarding the defeat devices in their diesel engines. In a groundbreaking ruling, the Ingolstadt Regional Court Audi requested to provide details on the thermal window, decision-making processes within the Group and the approval procedure.

The claim for damages filed by the buyer of an Audi A5 3.0 l Quattro Sportback has raised a number of questions at the Ingolstadt Regional Court. The diesel vehicle is equipped with an EA 897 engine developed by Audi that complies with the Euro 5 emissions standard and has a switch-off device in the form of a thermal window.

After PEMS measurements of the German Environmental Aid (DUH) This software manipulation means that the vehicles are clean on the test bench, but in real operation on the road, especially at low temperatures, they emit extremely high amounts of harmful nitrogen oxides (NOx) - up to eight times more than the legal limits allow. The injured Audi buyer used these measurement results to justify his lawsuit.

Audi cites “mistake of prohibition”

Audi has the use of the thermal window admitted in court, but did not provide any information on how it works, the temperature range and other technical data. Instead, the company argued that thermal windows were firstly an industry standard and secondly permitted for the purpose of engine protection under Article 5, paragraph 2 of the European Regulation 715/2007. The company also claimed that there was a "prohibition error". After all, the Federal Motor Transport Authority (KBA) had issued the type approval for the vehicle and had not yet ordered a recall. In addition, courts had also thermal window deemed permissible.

Conscious decision to manipulate

The Ingolstadt Regional Court did not follow this argument in its advisory decision (July 30, 2020, case number 34 O 1547/19). The car manufacturer did not provide any substantive reasons why the installation of the thermal window was an "error of prohibition," according to the court. Instead of accusing the plaintiff of insufficient explanations, Audi itself should have met its burden of explanation and proof.

The implementation of an emissions strategy was a conscious decision, especially since Audi justified the admissibility of the thermal window with the exception of "engine protection". The company was therefore aware of the risk that the software manipulation could be illegal and the model could lose its type approval.

Shutdown devices are only permitted within very narrow limits

The Ingolstadt court - like the Attorney General at the European Court of Justice - considers defeat devices that affect the effectiveness of the vehicle's emissions control system to be permissible only in exceptional cases and within very narrow limits. A thermal window may therefore only work within a narrow temperature range and only for so long that the vehicle, after a cold start, enters an operating mode in which it complies with the pollutant limits within a few minutes (e.g. after 400 seconds) - even at low outside temperatures.

Did Audi omit the thermal window during type approval?

The fact that the Federal Motor Transport Authority had issued type approval for the vehicle is irrelevant to the Chamber in this context. This approval would only be legally relevant and binding if Audi had fulfilled its obligation and disclosed all the necessary data on the thermal window as part of the type approval process. The court stated: "From the statements made so far, the court cannot determine whether the 'thermal window' emissions strategy was even presented. The defendant fails to make a clear statement on this and instead explains in detail what it was not obliged to do in its legal opinion."

Audi must provide comprehensive and detailed information

The district court has Audi is now unequivocally called upon to meet its burden of explanation and proof. The company must explain in detail how, in which temperature range and for how long its thermal window works. It must also disclose the decision-making processes and responsibilities when installing the switch-off device and prove that the legal requirements were complied with. Finally, the car manufacturer must also explain to what extent it informed the KBA about the thermal window during the type approval process - or why this was not done. "Doubts," said the court, "work to the detriment of the defendant.

"This decision sends a clear signal against the cover-up tactics of car manufacturers and the turning a blind eye by authorities such as the KBA, which may have been deceived itself. If this example catches on, hopefully the exhaust gas trickery will finally be fully investigated, which is long overdue - and not just in the case of the EA 897, but also in the case of other engines suspected of manipulation, such as the EA 288, the EA 896 or some OM engines from Daimler. We very much welcome this in the interests of the car buyers who have been harmed."

Partner Dr. Marco Rogert

EA897 Abgasskandal Motor - Verbraucherschutz Blog - R&U

OLG Düsseldorf: Haftung der VW AG bei EA897

VW AG is liable for V6 engine produced by Audi AG

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