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VW Golf 2.0 TDI (symbol picture): Inadmissible cut-off device also for the EA 288 diesel engine, at least for models built up to the end of May 2016.
Photo: Silas Stein / dpa
In a ruling that has not yet been officially published, the Higher Regional Court of Naumburg has sentenced Volkswagen AG to pay damages for deliberate damage that is immoral - namely because of a likewise inadmissible defeat device in early versions of the EA 288 engine. This is the successor to the diesel engine EA 189, which has so far predominantly been the subject of the lawsuits as a result of the diesel scandal.
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As far as is known, this is the first well-founded judgment of an OLG on this diesel engine - because VW defended itself in court until the very end.
The judgment should therefore also have a signal effect for other courts.
In the specific case, the judges awarded the buyer the original purchase price, minus compensation for the interim use of the vehicle, just under 21,000 euros, plus interest, against return of the vehicle (judgment of April 9, 2021, Az. 8 U 68/20) .
Internal VW documents support the plaintiff's allegation
The plaintiff, a private citizen, bought the used VW Golf 2.0 TDI Highline from a car dealership in October 2017 for a gross price of 21,750 euros.
Long after the VW diesel scandal became known.
However, VW had and has admitted tampering with the exhaust gas purification only for the EA 189 engine, not for the EA 288 engine installed in this vehicle. The plaintiff's Golf VII was registered in September 2015;
It was not until May 30, 2016, according to the judgment of the Higher Regional Court of Naumburg, that VW dispensed with this mechanism in the EA 288 engines, which changed the exhaust gas purification during testing.
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Mileage of the disputed Golf 2.0 TDI Highline at the hearing before the OLG Naumburg on March 25, 2021
Photo: private
The buyer had failed with his lawsuit at the Halle regional court.
The OLG Naumburg agreed that he was right: In the present case, the EA 288 TDI 2.0 EU 6 had a "cut-off device" installed because the engine management system provides various settings for operation on a vehicle test bench and normal driving, "with the Emission of nitrogen oxides (NOx values) is reduced «by changing the catalytic converter function.
And this defeat device is also »inadmissible« because the exceptions standardized for it in the relevant EU regulation do not apply.
The court was even able to rely on information from VW itself, as the company was forced to present internal documents in the course of the proceedings that ultimately supported the allegation.
For example, the OLG quoted from an "application instruction Diesel driving curves EA288 NSK", which was headed with the note "Privileged & Confidential", that by means of "data entry, activation and use of driving curves" it should be recognized whether a vehicle is on the test bench, »To place the exhaust aftertreatment events« accordingly. Because in normal operation a vehicle keeps cornering, but on the test bench it always goes straight.
During normal driving, according to the OLG, the NOx storage catalytic converter should therefore only be regenerated at certain distance intervals, or when it is full.
On the other hand, when the system is put into operation on the test bench, a special configuration would be activated that ensures that the catalytic converter “is almost empty at the beginning of the subsequent measurement,” which then has a positive effect on pollutant emissions.
Criticism also of the Federal Motor Transport Authority
The fact that the buyer only acquired the car when the manipulation of the previous EA 189 engine had already been publicly acknowledged by VW does not change the fact that the manufacturer has misled the buyer in a particularly reprehensible manner.
Because VW subsequently only disclosed to the Federal Motor Transport Authority (KBA) that a defeat device was also installed in the EA 288, "which the public did not find out about".
The judges did not spare criticism from the KBA either: VW argued that such a defeat device is permissible provided that the limit values are still complied with when it is deactivated, and the KBA has accepted that - with that the authority is one of »any legal Basis lacking legal opinion «followed.
VW also remained unsuccessful with the argument that from the end of May 2016 this defeat device was only removed from the EA 288 because the discussions about the EA 189 gave the "incorrect" impression that software that recognizes whether a vehicle is It is generally impermissible to drive around bends: Such an impression is rather "correct", the judges stated laconically.
When calculating the compensation, the OLG assumed a theoretical total mileage of 250,000 kilometers that the vehicle could achieve.
The Golf had 17,450 kilometers when it was purchased, and almost 27,700 kilometers at the court hearing before the OLG on March 25, 2021, so only just under 870 euros were deducted for the interim use of the vehicle.
Revision not allowed
Because the underlying legal questions have already been clarified, the OLG has not allowed an appeal.
VW could, however, file a so-called non-admission complaint with the Federal Court of Justice due to the amount in dispute.
The Esslingen lawyer Christopher Kress, who fought for the verdict, sees it as an "enormous explosive force" for other cases as well: The OLG has made it clear that the engine control system installed in the EA 288 engine - at least initially - is also "a variant of one illegal defeat device «.
In earlier proceedings before the Cologne Higher Regional Court regarding this engine, Volkswagen had accepted what is known as a default judgment - which is based on the plaintiff's submission because the other side did not appear for the main hearing. In the current proceedings, which were carried out by both sides to the end, the court, on the other hand, has to examine and assess all counter-arguments of the defendant. Unlike the Cologne decision, the judgment of the OLG Naumburg could serve as a model for other proceedings.
