Diesel judgment: Now car manufacturers have to prove that they are innocent

New wave of lawsuits?

New diesel judgment: Now car manufacturers have to prove that they are innocent

Diesel judgment: Now car manufacturers have to prove that they are innocent-prove
Cattle man Stylized VW logo. The group is also not aware of any guilt three years after the exhaust gas scandal – and looks calmly towards all consumer lawsuits

  • Site expert Marco Rogert

In a new diesel judgment, the European Court of Justice has made it clear that the effectiveness of exhaust gas systems may only be reduced within narrow limits. This would make millions of diesel cars illegal, believes right -wing expert Marco Rogert. He expects a massive expansion of the exhaust gas scandal.

At the 14th.12.In 2020, two amazing judgments – one at the European Court of Justice and one at the BGH – which the legal processing of the exhaust gas scandal will be influenced in one case are less sustainable in one case.
After that, in my opinion, the following is now certain:
1. The shutdown devices used by domestic and foreign car manufacturers are illegal.
2. The software updates offered by the VW Group and Daimler have been approved by the Federal Motor Transport Authority (KBA), but this approval must now be withdrawn because these are also illegal. The updated vehicles are to be recalled. There is no discretion.
3. In particular, according to the understanding of the ECJ, the so -called. "Thermal window", ie a temperature -led shutdown device, be illegal.
4. However, the EC types were then deliberately and illegal.
5. The content of the EC agreement is wrong in terms of content.
6. All affected vehicles would therefore be illegal in traffic.
7. Vehicles must not only adhere to the exhaust gas standards applicable to them on the test bench, but also on the street.
8th. In the future, significant deviations on the street should trigger the manufacturer’s obligation to explain (secondary burden of explanation). If this is not fulfilled, the manufacturer loses the process.

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Manufacturers are now in the obligation to prove

However, the BGH judgment, which is also felled, also has a negative aspect for certain lawsuits: at the time of work, the buyer has positive knowledge of the individual dismay of his vehicle and the risk of decommissioning, So there are no claims for damages. In this case, the claims from 826 BGB expire three years after acquisition to the 31.12.

About the expert

Marco Rogert is a lawyer and business lawyer at the Rogert & Ulbrich law firm from Cologne. The law firm represents thousands of VW buyers as part of the exhaust gas scandal. As one of the lawyers of the complaining consumer center association VZBV, he brought the model festival action to success. 235.000 victims are now compensated by VW as part of a comparison

Rogert studied at the University of Osnabruck and the Rijks University (Netherlands) and has the focus of transport law, international commercial law and credit security law. He lectured until May 2020 in economic and logistics at the University of Economics and Management (FOM) in Essen.

but: The burden of proof for this knowledge of individual dismay is still likely to make the defendant. The BGH has not yet made any judgment about the actual average case, in which the individual knowledge of the buyer is in dispute with the concern of his vehicle. However, the tendency is hostile to consumer.

KBA press release reveals strange legal opinion

The press release of the Federal Motor Transport Authority is astonishing to the ECJ judgment: “The decision of the European Court of Justice (ECJ) from 17. December 2020 to shutdown devices in motor vehicles concerns a French criminal proceedings in which it is important to determine whether the technology installed in the specific case is an inadmissible switch -off device. It is exactly about the installation of a switching logic, with which the vehicle recognizes a test cycle in the laboratory test, with the result that the NOx values rise in real traffic. The ECJ had to deal with the manufacturer’s arguments that the admissibility of such switch -off devices u. A. With the argument of the motor protection. The decision thus affects the facts of cycle detection that has been known since 2015.

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As early as 2015, the Federal Motor Transport Authority (KBA) determined the inadmissibility of such a shutdown device, declared in a specific case and thus made the subject of corresponding decisions. In these cases, the KBA has ordered binding recalls to affected manufacturers. In Germany this affected around 3 million vehicles. The information on mandatory recalls can be called up on the KBA website.
The KBA has created a very close interpretation in the admissibility of shutdown devices as a yardstick and thereby in accordance with the requirements of Article 5). 2 On shutdown devices in the European Regulation (EC) No. 715/2007 acts. The basis for this was and is always the examination of the individual case, which is also carried out by the KBA’s own investigations and measurements.The KBA sees itself confirmed by the decision of the ECJ in its position that has been taken since 2015."

What is used for one "Cycle detection"?

This is astonishing because the KBA specifies that he has created "a very close interpretation" in the "admissibility of switch -off devices" and the authority is confirmed by the decision. In the processes related to the VW Group (VW, Audi, Seat, Skoda), which is built in millions of times, Volkswagen AG claims that the cycle recognition software in EA 288 was disclosed by the Federal Motor Transport Authority and was not objected to by it. However, what should be recognized by the test cycle, if not to outdo the same by adapting the exhaust gas behavior when the cycle is detected?

Diesel scandal: the real background

The exhaust gas scandal is the largest scandal in German automotive history. He cost Volkswagen and other corporations billions and revealed dramatic undesirable developments, especially in the VW group. But the scandal is also used politically to push through goals such as driving bans. How did the diesel drama even come? What is actually behind the "German environmental aid"? And why are there only diesel driving bans in Germany for cars that are not even four years old, which are justified with local exceedings of measured values? Site has been looking behind the scenes since 2015.

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In my opinion, the same applies to the so -called "thermal window", i.e. temperature -led shutdown devices, like many manufacturers (Z.B. Daimler in his Mercedes diesel). According to the ECJ judgment of 14.12. the so -called. Thermal window clearly inadmissible. The verdict does not apply directly to the "thermal window", the explanations of what is inadmissible, but a subscription of the "thermal window" allow an inadmissible switch -off device to be understood. Finally, the ECJ will decide on this in 2021. For this purpose, Daimler claims that the Federal Motor Transport Authority has the so-called. "Thermal window" not object.

Thermal window judgment comes in 2021

So there are only two alternative truths: that of the Federal Motor Transport Authority or that of the manufacturers. Either the Federal Motor Transport Authority actually knew the shutdown devices and did not illegally object to them, which would have to be obliged to withdraw all affected EC types, since the administrative acts are illegal (ยง 48 VwVfG). This in turn led to crystal -clear compensation claims against the state.Or the Federal Motor Transport Authority is right and the claims of the manufacturers are pure protection claims. Then, in turn. That seems to me the more likely applicable version.

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VDA: "That is no longer done"

Insofar as the top association of the German automotive industry VDA welcomes the "clarification" by the ECJ in a narrow message and indicates that improvement in emission behavior is "no longer", that it was a nationwide practice to manipulate the test bench situation and to gradually sneak up illegal EC grants. A "clarification" by the ECJ did not require it, because the software manipulation was deliberately carried out. If the manufacturers had wanted to rely on the restrictive exceptional regulations on engine and component protection, they would have presented and disclosed their relevant switch-off devices and their necessity in the application process. This is the only way to build on the formally and material lawful EC permits. They didn’t do that because of course they knew about the inadmissibility of their approach. What is obvious does not have to be clarified by the ECJ.All affected diesel drivers are therefore advised to check their claims for damages and if necessary. to be enforced so that fraud is no longer worthwhile. Buyer of VW/Audi/Seat and Skoda with the engine type EA 189 should wait for the clarification of the limitation issue before you have a complaint filed. For the successor EA 288 and vehicles with 6-cylinder engines with 3.0 liter displacement and more, Daimler vehicles, etc. a statute of limitations can be excluded at the end of the year in my view.

This is what Volkswagen says about the ECJ judgment

You can read the view of the Volkswagen Group on the topic here:"(1) The view of the ECJ general lawyer Sharpston for the legal assessment of the switching logic, as it has been used outside of the USA and Canada in vehicles with diesel engines of the EA189, has been used for legal processing in the suction. Diesel scandal no consequences. This question does not play in Germany or in other European countries or a role in other European countries.(2) On the question of how the European provision for the exceptional act of motor protection is to be understood, the general lawyer has proposed a general, technical interpretation to the ECJ and emphasizes that it was the responsibility of the national authorities and courts to evaluate this in individual cases. The question of whether a temperature -dependent control of the exhaust gas recirculation, i.e. a certain suction. "Thermal window" is not decided in this procedure. This is decisive for this, the assessment of each individual case by the national courts and by the responsible authorities.(3) If the ECJ follows the motor protection of the general lawyer when interpreting the exceptional act, this does not lead to the inadmissibility of thermal windows. On the contrary: usually thermal window should protect the engine from sudden and unexpected damage; Even before those that cannot be prevented by regular maintenance. These are the requirements that the general lawyer has set up. They are fulfilled by the thermal windows usual in practice. This is also confirmed by current scientific reports.(4) Customer lawsuits due to a thermal window are unsuccessful and will also be unsuccessful regardless of the decision of the ECJ. So far, the courts have already rejected the complaints in most cases in which customers use manufacturers due to an allegedly inadmissible thermal window – regardless of whether the specific thermal window is permitted or inadmissible. This does not matter in these complaints. Because a claim against the manufacturer requires a deliberate moral violation.The thermal windows used were basically known to the authorities and the legislator as an industrial manager for diesel vehicles. They were approved and are subject to a differentiated regulatory assessment.(5) Regardless of this, the thermal window in modern diesel vehicles of exhaust gas levels EU6 is very far due to the progressive technical development. Also the software updates agreed by the vehicle manufacturers with the Federal Government in August 2017 to expand the thermal window of older vehicles ensure low emissions at cold temperatures. Modern EU6 vehicle concepts also contain an active exhaust gas aftertreatment system (SCR catalyst or NOX storage catalyst) that reduces emissions regardless of a thermal window. In modern diesel vehicles, the thermal window therefore has practically no more meaning."

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7 thoughts on “Diesel judgment: Now car manufacturers have to prove that they are innocent”

  1. Car manufacturers and donations
    Of course, the donations of the car manufacturers to the parties have nothing with the permits … the switch -off technology to do. But when financing the parties, the politicians rely on the money. That’s why they always sit in the car on automesses. At Aunt Emma nobody goes to take photos.

  2. Amounted to
    I also bought a Golf IV Diesel last week. Today I find out that the main argument for my purchase, namely environmental compatibility, is quite better than from other manufacturers, but are not available in an advertised mass. I was so disappointed and bumped into my head. I will take every opportunity to call for compensation from VW ! The best thing to do is the new value of a comparable vehicle of newer buildings – only in this way can the environment and environmentally conscious consumers be justice. The car, of course, keeps, reliable, goes very well and spent astonishingly little…

  3. Steep template for complaints
    I can already imagine what the comments will look like here. Just forget that you have certainly driven these cars very satisfied for years.

  4. Audi and VW cheated me and thousands,
    Diess (CEO VW Konzrn) has publicly named this on television as fraud, so he probably did not pay attention. Nevertheless, VW describes the fraud software, which switches off the motor’s cleaning mode in our latitudes over half of the journey time, as a "logic circuit". Yes, it has a logic: switching off cleaning, not installing more complex motor protection, deception of Federal Motor Transport Authority (KBA) and buyers. The KBA has wound everything without criticism anyway, so that at VW (quote email VW) you "let the sparkling wine bang". Even if you wish that the DT auto industry is doing well, this does not justify any fraud. VW is still sitting on a high ross. They have played my trust in their own fault. VW does not excuse that others have cheated.

  5. "Innocent" a big word
    Which carmaker is already "innocent"? Everyone wants to get out of colorful sheet metal on the hell, there is (almost) every remedy to the top managers. This is then "sold" to the shareholders as a success and they willingly relieve the board. And the game starts again.

  6. Germany that
    Autoland, with the slogues, lead through fraud u. Our dishes are politically occupied. But now it will be expensive after the ECJ interferes, but at VW 200 billion debts u. Daimler 160 billion debts, the share prices will continue to increase with the debts.

  7. It is clear that everyone cheated without exceptions
    It is about legal atmosphere not to be guilty, the KBA stands supported as much as possible when it comes to cheating on drivers and damaging the environment….We are already a banana republic, you can obviously a government (KBA or. Minister of Transport) do not buy…


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