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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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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Invalid driving curve detection for test bench detection

In its ruling, the court assumes that the vehicle was purchased via a so-called “curve detection“

Volkswagen did not deny that this function enables the vehicle to recognize whether it is on the test bench. The vehicle also switches between two operating modes. As a result of the switching, pollutant emissions are many times higher during normal operation on the road than on the test bench. The driving curve detection is used to comply with the required values on the test bench. This is clear from an internal document from Volkswagen AG called "Application guidelines and approval specifications EA 288" submitted by the plaintiff. The court rejected the car manufacturer's argument that this function is only used to ensure that the measurement results are not falsified and that it is not needed to comply with the limit values.

It is also irrelevant whether exceeding the limit values in normal operation would have had an impact on the vehicle's ability to obtain approval. What is more important is that the driving curve detection only has the function of controlling the NSK (NOx storage catalyst) differently and thus induces a certain behavior of the vehicle only for the purpose of obtaining approval.

VW's statements that this function is not required to comply with the limit values are therefore not understandable. Rather, the court assumes that a different NSK control will definitely have an impact on the engine and its environmental influences. The court rightly asked itself why Volkswagen would otherwise have developed and implemented this function.

Increasingly good prospects of success for affected vehicle owners

Another ruling that clearly shows: Proceedings against Volkswagen AG, which concern the group's EA288 diesel engine, are much more promising than Volkswagen AG itself tries to portray.

Get free advice now!

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