While the Nuremberg-Fürth Regional Court awarded our client damages of almost €13,200 for his 10-year-old VW Touran with an EA189 diesel engine from Volkswagen AG, our client was even awarded damages of €15,640 plus financing costs paid by him for his over 9-year-old VW Amarok by the Rottweil Regional Court.

Limitation of residual damage claims only after 10 years

This option is provided by Section 852 of the German Civil Code (BGB), which guarantees the injured party the so-called residual compensation claim and only expires in the amount of the enrichment after 10 years from its creation, i.e. from the date of purchase. Those affected therefore still have the option of reclaiming what they obtained from Volkswagen through the purchase of the vehicle, provided that the purchase contract was concluded no more than 10 years ago. The purchase contract does not have to have been concluded directly with Volkswagen itself; an indirect inflow of assets, e.g. via contractual partners, must also be returned, according to the awarding courts.

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In another case, the LG Ingolstadt (Judgment of 23.04.2021, Az. 51 O 2686/20) also in favour of our client. He had his Audi A6 Euro 5 with 230kw in March 2018 for €39,930, bought second-hand with a mileage of just under 74,000 km and had driven a good 90,000 kilometers since then. Audi AG must now take back this car, built in 2014, for €27,432.

The Erfurt Regional Court also followed our argument in these proceedings. In its decision (Judgment of 07.05.2021, Az. 10 O 1269/20), the court upheld the claim. Audi AG must return the car, also a Audi A6 Euro 5 with 230kw, for which our client paid a purchase price of € 28,240 in March 2017, can now be taken back for € 12,441.

The only downside: When calculating the compensation for use, the Erfurt Regional Court only assumed a total mileage of 250,000 km, which leads to a lower sum for the car. In the interest of our client, however, we will appeal against this decision and demand a total mileage of at least 300,000 km.

Audi A6 & A7 with BiTurbo engines and 230kW recalled by KBA

During the proceedings before the Ingolstadt Regional Court, Audi AG itself admitted that the vehicle was affected by a recall ordered by the Federal Motor Transport Authority (KBA), so that the court was certain that the plaintiff's vehicle had an illegal switch-off device. Rather, the KBA recall explicitly refers to the removal of this illegal switch-off device, which requires a software update on the vehicle's engine control unit.

The manufacture and marketing of diesel engines using engine control software that impermissibly influences the emission reduction system and thus controls the emission behavior of the engine on the test bench differently than in regular ferry operation ultimately meets the requirements of immoral, intentional harm to the buyers of such vehicles within the meaning of Section 826 of the German Civil Code, according to the court.

Cost reduction and profit maximization as a motive for illegal defeat device

According to the ruling chamber of the Ingolstadt Regional Court, the only possible reason for putting the fraudulent engine on the market was the desire to reduce costs and maximize profits through high sales figures. There is no other reason apparent from general experience. The pursuit of profit is not reprehensible as a motive for the actions of a commercial enterprise; on the contrary, the recognized purpose of a company in a market economy is to achieve and increase economic profits, the ruling states. However, the significance of the decision to use the illegal defeat device in an engine type that is installed in a large number of vehicles, the exploitation of the buyers' trust and the accepted and threatened significant consequences for the buyers, including the immobilization of the vehicles purchased, lead to the decision being immoral. In this pursuit of profit, Audi AG deliberately ignored mandatory legal provisions.

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