The Regional Court of Cologne has convicted Audi AG of manipulating the exhaust gas in an Audi Q5 3.0 TDI Quattro with an EA896 Gen2 engine (emission standard Euro 5) for deliberate immoral damage in accordance with Section 826 of the German Civil Code. In particular, the so-called thermal window is at issue. The references to the problematic temperature dependency are interesting: In Germany it is rarely so warm on average that the exhaust gas purification works completely.
In addition to Volkswagen AG and Daimler AG, the car manufacturer Audi is not getting out of the headlines of the diesel exhaust scandal – and is receiving more and more judgments in German regional and even higher regional courts. Now the Cologne Regional Court (judgment of February 12, 2021, Az .: 20 O 32/20) has followed up Audi AG with deliberate immoral damage in an Audi Q5 3.0 TDI Quattro with an engine of the EA896 Gen2 series (emission standard Euro 5) § 826 BGB condemned. The car company has to pay 32,075.55 euros plus interest of four percent between May 7, 2019 and March 3, 2020 and five percent since March 4, 2020 for the Audi Q5 3.0 TDI Quattro (built in 2011, mileage 88,441 kilometers if purchased on November 5, 2014, 138,487 kilometers on November 20, 2020). A usage fee will be deducted. 85 percent of the costs of the legal dispute are borne by Audi AG. The diesel engine of the type EA896 is the predecessor of the EA897, which does not get out of the headlines.
“In principle, the tenor for the consumer-friendly judgment is known from other proceedings. In particular, the so-called thermal window is at issue. The exhaust gas purification only works 100 percent within the temperature range of the outside air of 17 to 30 degrees Celsius. This is definitely an inadmissible defeat device, although Audi AG denies that it is inadmissible, ”explains Mönchengladbach lawyer Dr. Gerrit W. Hartung from the Dr. Hartung Rechtsanwaltsgesellschaft mbH (www.hartung-rechtsanwaelte.de). The law firm deals exclusively with investor and consumer protection issues and specializes in advising those affected by the emissions scandal. Dr. Gerrit W. Hartung is considered a “diesel lawyer” from the very beginning.
The references to the problematic temperature dependence are interesting. Complete exhaust gas cleaning takes place in a temperature range that is rarely used in Germany. The monthly average temperature in 2020 was one of the warmest years since weather records began, only in June, July and August above 15 degrees Celsius. In the other nine months it was significantly lower. According to the court, it is therefore certain that a structural part is installed in the vehicle, as the ambient air temperature is determined in order to change or deactivate the function of a part of the emissions control system, whereby the effectiveness of the emissions control system under conditions that can reasonably be expected in normal vehicle operation , is reduced. On the basis of the monthly average temperatures, it is easy to see that the cut-off device is permanently active in nine out of twelve months. The extent to which the exhaust gas recirculation is reduced is irrelevant.
Attorney Dr. Gerrit W. Hartung once again refers to the principles of the secondary burden of proof. In this context, the car manufacturer must actively exonerate itself from the allegations in the emissions scandal and with extensive explanations on how the technologies work. Audi AG did not comply with this principle in any way. It has not already alleged that the thermal window under conditions which can reasonably be expected in normal vehicle operation does not result in the massive exceeding of the limit values set out by the plaintiff.
By the way: The higher regional court in Naumburg pointed out in a notification of June 29, 2020 that possible claims by plaintiffs with regard to the EA896 engine are not time barred. Dr. Hartung says: “In this respect, the chances for damaged diesel customers to receive extensive financial compensation in the context of the emissions scandal are increasing. Consumers who have suffered harm should therefore not be afraid to take the path of fraud liability suits. “
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