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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Der Beitrag EA288: Schadensersatz für Skoda Octavia Fahrer erschien zuerst auf R&U.

The large VW Group wanted to convince the little man on the street that it is completely hopeless for buyers of a vehicle with the EA 288 engine to demand compensation. VW even launched its own media campaign to this end in autumn 2020. But the reality is different.

Ten regional courts have already granted claims for damages under EA 288: LG Düsseldorf AZ 11 O 190/18, LG Offenburg AZ 3 O 38/18, LG Regensburg AZ 73 O 1181/19, LG Munich II AZ 3 O 4218/20, 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, LG Hanover 11 O 189/20.

Many other regional courts are undergoing a transformation and are changing their initially dismissive attitude. Higher regional courts in Celle, Oldenburg, Cologne and Munich are also taking a very close look at the cases and are therefore becoming unpleasant for VW.

Dr. Rogert: "In the first few months after the emissions scandal 2.0 (series EA288 Euro 6) became known, the courts openly expressed scepticism as to whether these vehicle types were actually manipulated, contrary to the assurances of the VW Group. This scepticism has given way to curiosity. The judges now want to know for sure. We can no longer escape orders for evidence; we receive several every day. This means that the courts assume that the content of our presentation is comprehensible (logical). In other words, the courts are now moving to checking for themselves, through a so-called evidence gathering, whether manipulative software is also being used in the EA 288, which ensures that the limit values are complied with on the test bench in order to get the vehicle approved. In the meantime, 11 different regional courts nationwide have upheld lawsuits regarding manipulated EA 288 engines. The higher regional courts in Celle, Oldenburg, Munich and Cologne have issued rulings in favour of the plaintiffs. The whole thing is extremely reminiscent of the developments in the early stages of the legal investigation into the EA 189 scandal. I have the feeling that things are only just getting started."

The EA 288 is the successor engine to the scandalous EA 189 engine of the VW Group, which was the cause of the emissions scandal. It is available in the Euro 5 and Euro 6 emissions classes and has been installed in the 1.2 to 2.0 liter models of the VW, Seat, Skoda and Audi brands since 2015.

EA 288- VW wants to prevent a new wave of lawsuits over the successor to the scandal engine – apparently by all means

Dr. Rogert: "Many consumers are still uncertain. Is my vehicle, which has the successor engine to the EA 189, the EA 288, also affected by the emissions scandal or not? There has not yet been a recall from the Federal Motor Transport Authority, except for the VW T6. The answer is: yes! You should not definitely trust the manufacturer's information."

An article in this week's Süddeutsche Zeitung, in the seventh year of the emissions scandal, also deals with this in impressive terms. https://bit.ly/3nMJhyU Here it says:

"Cars for life" is one of Volkswagen's slogans. "Time is money" would be just as suitable as a company motto. After the revelation of emissions manipulation in diesel vehicles over half a decade ago, VW had one main interest: to pay little or no compensation to most of the more than ten million customers affected. The cunning strategy of the company's top management was as simple as it was successful: to let as little of the alleged criminal activities as possible get out. To keep quiet about as much as possible and thus gain as much time as possible until as many claims for compensation as possible expire.

The Süddeutsche Zeitung continues:

"And it is not illegal not to present all the internal findings to the court. The burden of proof in damages lawsuits in Germany and elsewhere lies with the plaintiffs. Volkswagen does not have to incriminate itself."

But more and more judges at the regional courts are realizing this and are no longer letting the company get away with this attitude.

VW must pay 22,400 euros in damages to a plaintiff with a VW Caddy with EA 288 Euro 6

This is already the third positive ruling at the Offenburg Regional Court. Now the 2nd Chamber of the Offenburg Regional Court, case number 2 O 168/20 of January 4, 2021, has also sentenced VW to pay damages. The judge stated:

 "It is undisputed that the vehicle with EA 288 has a so-called driving curve installed, which enables the engine control to recognize whether the vehicle is in traffic or on the test bench.... In vehicles with such a test bench recognition, the vehicle was not tested and registered properly.... The vehicle is defective.... The VW Group has immorally deceived the plaintiff about the vehicle's defectiveness and is therefore liable for damages."

Consumers with a 1.2 to 2.0 liter diesel vehicle built from 2015 should therefore consult a lawyer and have their rights checked as soon as possible.

Der Beitrag EA 288 Klagen sind erfolglos – von wegen! Jetzt geht es erst richtig los! erschien zuerst auf R&U.

Clear words from the European Court of Justice in a ruling dated December 17, 2020. What the automotive industry has been telling us for years as an excuse for installing such defeat devices, namely that they are supposedly necessary to protect the engine and are therefore permissible or legal, has been nothing more than another attempt to conceal or downplay another fraud against the end customer.

ECJ puts the car industry under pressure

Let's be clear about the magnitude of this decision. What does it mean for us who drive and have bought a car?

Manufacturers such as VW, AUDI, Seat, Skoda, Daimler etc. have installed defeat devices in almost every car. Regardless of whether it is diesel or petrol! The entire industry manipulates with defeat devices. The so-called thermal window, which regulates the exhaust gas purification depending on the outside temperature, is particularly noteworthy here. The thermal window is particularly explosive because it has now been declared an illegal defeat device by the highest court, and is installed under the code name of the so-called software update in diesels in which other illegal defeat devices had already been discovered and which were recalled on a large scale in the diesel emissions scandal.

That means the whole game starts all over again! The car industry is facing the biggest wave of recalls of all time! Well, in this case it probably won't hit the wrong people. Because the quibbling over words in recent years has made it clear that here too, the company was systematically at work, without - as always - being aware of any guilt. That didn't work with the operating mode changeover switch-off device that first became known in the emissions scandal, but it at least kept courts and plaintiffs waiting for years until the Federal Court of Justice finally spoke its mind on May 25, 2020, ruled in favor of consumers and awarded damages. But the ones who suffer most are again those who drive a car with this switch-off device, the end users. They are the ones who have the hassle and the rush.

ECJ rules thermal windows as illegal - almost all vehicles are affected - What you can do now!

Buyers of a vehicle with an engine that has an illegal switch-off device can sue for the rescission of the purchase contract. This means that the purchase price paid for the vehicle is demanded back and the vehicle is returned to the manufacturer. In this case, you only have to deduct what is known as compensation for use. This is a monetary deduction for the kilometers that you have used the vehicle yourself, usually an amount of just a few cents per kilometer.

Vehicles with such a switch-off device were not eligible for approval and should therefore not have been registered for road traffic, which is why buyers are also threatened with driving bans or immobilization. Our lawyers therefore advise you to act now!

The ECJ ruling can also give rise to new claims for damages for all those whose claims are supposedly time-barred according to the BGH ruling or who only bought a diesel vehicle after September 2015. Get advice from our lawyers!

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The Darmstadt Regional Court upheld the emissions scandal lawsuit brought by the owner of a Skoda Octavia “Style”. In its ruling, the court completely followed the plaintiff’s arguments (judgment of November 30, 2020, case number 53 O 448/19).
Volkswagen must take back the Skoda Octavia 2.0l purchased in January 2017 against payment of 20,770 euros. The plaintiff has for the emissions scandal The driver bought the affected car new for 24,230 euros and has since driven almost 50,000 km in it. The court followed the plaintiff's argument and assumed a total mileage of 350,000 km for the calculation of the compensation for use.

EA288 – the successor to the “emissions scandal engine” EA189

In its reasoning for the verdict, the court assumes that the engines from the new series were also equipped with illegal software. This was programmed in such a way that the exhaust gas recirculation is controlled in two different operating modes. In normal road traffic, a low level of exhaust gas treatment is active.

As with the “emissions scandal engine” EA189, the control software also leads to EA288 that the legally defined limit is only complied with in the type approval test procedure. The special feature of the current proceedings is that the court rejected the plaintiff's argument regarding the programming of the engine control software in the engine EA288 between the parties as undisputed.

Internal VW documents attest to emissions manipulation

The defendant Volkswagen AG initially simply denied the statement made in the statement of claim and classified it as unsubstantiated. However, in the statement of claim, the plaintiff side made a qualified statement by submitting excerpts from an internal VW document entitled “Decision template: Application guidelines & approval specifications EA288”. This internal document states, among other things, that the target values for the NEDC cycle are up to 1.5 times higher than the EU specifications of 80 mg/km and thus in a range of up to 120 mg/km. In addition, the Detection of the test bench run by the installed software described to exhaust aftertreatment “to be placed only according to distance”.

Taking into account the plaintiff's arguments, which were qualified by the submission of internal documents of the Volkswagen Group, a simple denial was no longer sufficient. Volkswagen would instead be the manufacturer of the engine EA288 to make a so-called substantiated denial. However, this did not happen. Therefore, the plaintiff's statement regarding the programming of the engine control software should be regarded as admitted.

The court has no doubts about the immorality of the conduct

In its legal assessment, the court has no doubts about the immorality of the conduct. It is obvious that Volkswagen AG wanted to gain competitive advantages through illegal means and thereby increase company profits. However, this goal, which is legal per se, was achieved through reprehensible means. As a law firm representing the plaintiff in Darmstadt, we are very pleased about this success!

"A court has finally recognized the potential of the internal document. It's all there - you just have to draw the right conclusions from it. VW's behavior seems to have changed. The transparency announced by the company is also just lip service. Car customers trust that vehicles with an EC type approval can be operated in accordance with the law. Volkswagen continues to abuse this trust and use it for its own benefit. It is not possible for a customer to recognize this deception. I can only advise everyone to seek legal advice from a specialized law firm so as not to end up being the fool."

Partner Dr. Marco Rogert

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