New hope for deceived diesel drivers

So far, Volkswagen has fed its angry customers with a software update. But if a court in Cologne has its way, it should still be possible to withdraw from the purchase even after the update.

Resignation possible?  VW diesel drivers can have hope.

In the emissions affair, Volkswagen presents itself from very different angles. In America, according to court records, the company had bought back more than 350,000 diesel vehicles from owners by mid-February and spent more than 7.4 billion dollars on them. In Germany, however, the car manufacturer from Wolfsburg is resisting a comparable measure. Nobody wants to talk about a mistake in Wolfsburg. Shortly after the tampering with diesel engines became known in autumn 2015, VW promised affected owners a software update that was supposed to fix the “issue”.

Lawyers and corporate lawyers from VW always pointed out that the retrofitting of the cars had been thoroughly checked by the Federal Motor Transport Authority (KBA). According to its own information, VW has now improved almost 7 million diesel vehicles around the world, and in Germany alone there should be 2.5 million vehicles. Apparently, this could deter a number of complaining customers from returning their diesel cars. But this strategy of conflict avoidance is cracking.

A few days ago, a German higher regional court (OLG) made it clear for the first time that a customer can return his diesel after the software update – even if he has continued to use the vehicle afterwards (Ref .: 18 U 134/17). Should the decision of the 19th civil senate at the Cologne Higher Regional Court be heard by other courts at the end of March, the previously undecided owner could bring an action. At the end of 2018, many customer claims will expire, as the Federal Ministry of Justice recently pointed out in the context of the planned model declaratory action. Even some business-minded lawyer repeatedly brings the deadline into play and, thanks to the interim decision from Cologne, smells morning air.

“The legal dispute has not yet been decided”

In the decision, the Senate assumes that the car, in this specific case a used Audi A4 TDI, was defective “because of the use of the control software”. In this case, the Audi dealer would have to prove whether or not the rework through the software update failed. The court takes the view that the plaintiff only has the burden of proof if he has accepted the repair as the fulfillment of the actual car purchase – which is usually to be assumed in the case of an apparently satisfied customer who drives from the workshop after a repair. However, the judges of the Cologne Higher Regional Court argue that in this case the buyer cannot judge at all whether the software update was successful or not – the judges say that the judges simply lacked “necessary details”.

In their opinion, there are many indications that the Audi driver only agreed to the retrofit in order to be able to continue using his car. Because without the update, the KBA threatens to shut down. The litigation continues, however. The court now wants to know from the Audi dealer how the original manipulation software works and what the update does. An expert must clarify whether the software update offered by VW has a negative effect on performance, consumption, nitrogen oxide and CO2 emissions and the service life of the vehicle or individual components. It is unclear how long this will take and when a judgment will be reached, said a court spokesman for the FAZ

VW is relaxed about the decision. In the group, it is assumed that the expert should not find any significant deficiencies in the Audi due to the software retrofitting. But that is precisely what the plaintiff claims. “The legal dispute has not yet been decided,” says Wolfsburg. The group points out that numerous other courts, most recently the OLG Stuttgart, have ruled in favor of VW. 16,000 individual lawsuits are now pending in German courts. In the first instance there are 2500 judgments, of which “70 to 75 percent of the cases” are dismissals, it is said. In the appellate court, the percentage is even higher.

Such information is difficult to check for plausibility. Because there is no central point in the judiciary that records all civil suits in the diesel scandal. At the OLG Stuttgart, where a VW dealer was able to prevail against a customer last week, almost all senates are now busy with around 80 complaints. The customer complaints are also not assigned to a separate Senate because they are sales disputes, explains the spokesman for the Cologne Higher Regional Court. In addition, numerous out-of-court settlements make transparency in the figures claimed by VW difficult. The parties agree to keep the content confidential.

The lawyers of the American law firm Hausfeld and the Hamburg legal service provider My Right are assuming a significantly higher number of plaintiffs. Jan-Eike Andresen, head of the legal department at My Right, reported that more than 26,000 consumers had already joined a joint model lawsuit on the platform. However, Hausfeld’s legal reasoning differs from most of the pending civil cases. From the point of view of the lawyers, VW should never have been allowed to sell the manipulated diesel vehicles in the European Union because they did not have a valid type approval. The company is therefore obliged to take back the cars and refund the purchase price. A pilot lawsuit at the Braunschweig Regional Court failed, and in November 2017 Hausfeld filed another lawsuit there for more than 15,000 VW customers.