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Diesel exhaust scandal: our answers to common questions
If there is an illegal defeat device in their own car, those affected have several construction sites:
- The car suddenly loses its resale value.
- The consequences of software updates and hardware conversions can hardly be foreseen by laypeople (keywords: fuel consumption, engine durability, maintenance effort).
- It is unclear which German city center you will be able to drive to in the coming years.
- If you refuse to accept updates / retrofits, the registration authorities can even shut down the car for you.
The best known is the VW emissions scandal, which became public in 2015. Millions of VW models with EA 189 diesel engines were affected - both 1.2-liter, 1.6-liter and 2.0-liter units. They are affected by a particularly large number of recalls and most of the vehicles have already landed in the workshops.
But with the retrofits, the consequences are far from over. The VW scandal is currently being dealt with in countless legal proceedings. The BGH ruled on May 25, 2020 that VW is obliged to pay damages to its customers (file number VI 252/19). The Federation of German Consumer Organizations (vzbv) has brought a model declaratory action against VW so that those affected can get their money. A settlement was reached in the proceedings in February 2020.
Cars from other brands of the VW Group were also manipulated: Audi, SEAT, SKODA and Volkswagen Commercial Vehicles. Other German manufacturers are also involved, there have been recalls from the Federal Motor Transport Authority, for example Audi (more than 100,000 vehicles nationwide), Porsche (more than 19,000 vehicles), Daimler (around 280,000 vehicles), Opel (around 32,000 vehicles) and BMW (around 5000 vehicles).
Foreign manufacturers are also suspected of selling cars in Germany that are equipped with manipulation software. However, the German authorities are not responsible. The US Environmental Protection Agency (EPA) and the US Department of Justice have filed a lawsuit against the American Fiat Chrysler Group (FCA), for example, because they accuse the company of using illegal defeat devices.
Has my car been affected by the emissions scandal?
The Federal Motor Transport Authority (KBA) has not published any press releases on individual recalls for a long time. Consumers therefore usually only find out about a recall of their vehicle through a letter from the manufacturer.
You can also check the recall database of the Federal Motor Transport Authority to see whether there has been an official recall.
In doing so, you should pay attention to what was given as the reason for the callback. Vehicle recalls may also have been carried out for reasons other than tampering with the NOx emission control system. The car is only affected by the "exhaust scandal" if the exhaust gas recirculation is manipulated.
Suspicious factors in gasoline engines from Porsche and Audi
In August 2020, the first reports of possible manipulation of cars with gasoline engines came up. According to media reports, the manufacturer Porsche is investigating internally the suspicion that there could be illegal changes to hardware and software. For an Audi there is said to be an expert opinion that has determined the use of a so-called "defeat device" that would not be legal.
But there is still no need for action for buyers of gasoline vehicles. The decisive factor here will also be whether there is a recall by the Federal Motor Transport Authority. Should the one come for your gasoline model, deadlines would begin to run. Legal action is also easier with an official recall.
Can my car be affected if it does not appear in the recall database?
Even if the Federal Motor Transport Authority has not yet declared a recall, the vehicle can still be manipulated in this way. The problem: Without a recall from the Federal Motor Transport Authority, you would have to prove yourself - usually by means of an expensive expert report - that you also have an inadmissible defeat device.
If it is certain that a defeat device is installed, some courts assume that the manufacturer must explain why this was exceptionally permissible under EU law (LG Stuttgart, judgment of January 17, 2019, Az. 23 O 172/18 and 23 O 178/18). Your expert would only have to check whether such a device is installed. However, you do not have to determine whether it is illegal.
What are my rights?
Against the seller (car dealer):
If there is an illegal defeat device, the car has a defect according to § 434 I S. 2 No. 2 of the German Civil Code (BGB). The Federal Court of Justice also pointed this out on January 8, 2019 (VIII ZR 225/17). The reason is that the authorities are threatened with the prohibition and decommissioning of the vehicle. You therefore have the usual warranty claims - within the statutory limitation period of two years from the handover of the car.
If the vehicle was bought used, the limitation period can be reduced to one year in individual cases.
First and foremost, you have the right to supplementary performance - that is:
- The vehicle needs to be repaired
- or exchanged.
As a car buyer, you decide which of the two options you would like to take advantage of.
If you choose a new delivery, you should (have) checked whether this is an option in your case: In the case of new vehicles, the BGH considers a new delivery to be fundamentally possible even if the model at that time is no longer available. Then you are entitled to receive a new car of the same type and equipment. However, the car dealer may refuse to deliver a new one because of disproportionate costs.
You should definitely seek legal advice on this.
A repair will usually result in software updates or hardware retrofits - both can in turn trigger new problems (see below under "Does the retrofitting have a negative effect on engine and driving performance as well as consumption?").
Against the manufacturer:
Does the vehicle manufacturer have a warranty given, you can under certain circumstances also assert rights from it within the specified period of time. The specific guarantee conditions in each case are decisive.
Vehicle manufacturers are also liable to pay compensation for deliberate exhaust gas manipulation. On May 25, 2020, the BGH ruled that the installation of the manipulated shutdown software would be a willful, immoral damage represents (file number VI 252/19). Judgments have also been passed against other manufacturers in which the vehicle manufacturers were sentenced to compensation for willful immoral damage.
Can I also withdraw from the contract?
There is a right of withdrawal. In this case, you would have to return your car to the seller. In the event of an effective withdrawal, the latter must reimburse the purchase price - minus a compensation for use. It may be that the bottom line is that there isn't much left. On July 30, 2020, the Federal Court of Justice ruled (Az. VI ZR 354/19) that the benefits of use can even completely consume the claim for damages in the case of frequent drivers.
Before withdrawing from the contract, you must set a deadline for supplementary performance. Even if many courts in the VW emissions scandal assumed that setting a deadline was unreasonable, in our opinion you should set a deadline to be on the safe side. There are also different decisions about the length of the deadline. Here the period varies between two weeks and a year. In our opinion, a period of three months should be sufficient.
After the deadline has expired, you can grant a further final extension of the deadline or declare your withdrawal.
What are my rights if I want to keep the car?
In this case, too, you must first set a deadline. If this elapses without any result, you can reduce the purchase price and demand part of the purchase price back.
You have a claim for damages against the manufacturer, this relates to the reduced value of the vehicle.
What deadlines are there in the exhaust scandal at VW?
We have written a separate article on this.
What should I do if I find out about my car being recalled?
In our opinion, you should immediately - preferably before carrying out a retrofit measure - assert your warranty rights against the dealer. This means that you must first set a deadline for supplementary performance (see above). It is also advisable to act quickly with the manufacturer. Get legal advice on this.
Will my legal expenses insurance cover the costs?
In many cases you will not be able to reach an out of court agreement with the dealer or manufacturer. In these cases you have to sue. The legal protection insurances are likely to issue a cover letter if there is an official recall due to exhaust gas manipulation. Countless courts have decided in the "VW emissions scandal". The prerequisite is that you had already taken out legal protection insurance when you bought the car.
Do I have to have my car retrofitted?
Yes, if you want to keep the car, you should carry out the retrofit at the latest as soon as the responsible vehicle registration authority threatens to shut down your car. It doesn't help if you have gone to court and a judgment has not yet been pronounced. The car can still be shut down for the time being (e.g. Higher Administrative Court of North Rhine-Westphalia in Münster, rulings of August 17, 2018 ruled, Az .: 8 B 548/18 and 8 B 865/18). This also applies if you are suing the dealer or the manufacturer in a civil court.
There is also the risk of not being given the HU sticker during the main inspection. In addition, the environmental badge can be withdrawn or downgraded.
Where can I have my car retrofitted and who pays for it?
If the problem is to remedy the defect, the car dealer must pay all costs and, if necessary, get them back from the manufacturer.
In the case of VW, the Federal Motor Transport Authority (Kraftfahrtbundesamt) obliged VW to bear the costs - which VW accepted. In other cases you should check with the manufacturer.
What should I consider before retrofitting?
- It is advisable (but possibly associated with high costs) to secure evidence of the technical status of the vehicle before retrofitting. The background: You run the risk of not being able to sufficiently prove the status before the update after the upgrade.
- Before the workshop carries out retrofitting, you should request a certificate from the manufacturer stating that consequential damage has been excluded (use our free sample letter for this).
- In addition, before correcting the software or hardware, you should have the car dealer confirm in writing that the dealer is responsible for the retrofitting by the manufacturer (use our free sample letter for this).
Do I still have rights after a software update?
Rights against the seller:
That depends on whether the software update eliminates the defect in the individual case. The courts have ruled differently in the "VW emissions scandal": The Cologne Higher Regional Court ruled on March 27, 2018 that customers can withdraw from the purchase even if the software update has already been carried out (Ref .: 18 U134 / 17) .
The BGH considers the deficiency to be eliminated when the legality of the vehicle, i.e. the type approval, is restored. The BGH has not conclusively determined whether this was the case with VW.
Rights against the manufacturer:
Any claims for damages against the manufacturer will not be eliminated by the software update. The BGH clarified this in its judgment of May 25, 2020 (file number VI 252/19). Because for the damage it depends on the time of purchase, later changes are irrelevant.
Do I have to expect an additional tax payment?
Because of the manipulation of the CO2 values, the vehicle taxes may have been set too low; therefore, the holder is in principle threatened with having to pay additional taxes.
VW had promised: If additional tax claims are due, the group will pay them.
Does the retrofitting have a negative effect on engine and driving performance as well as consumption?
There is no general answer to this and it depends on the measure approved by the Federal Motor Transport Authority. In the case of retrofitting in the context of the VW emissions scandal, the Federal Motor Transport Authority assumes that the functions of the vehicle are not impaired. The ADAC also found only minor negative effects of the update.
On the other hand, according to media reports, customers report higher consumption, sooty EGR filters, lower performance and changed engine noises.
If new defects appear on the car after the retrofit, claims for warranty or damage compensation can again be considered.
Can I sell / buy someone else's vehicle that has been tampered with?
Yes. However, the seller should advise the new buyer of increased nitrogen oxide levels. In addition, it makes sense to assign warranty claims to the new buyer in writing.
If a retrofit has been carried out, you should ensure that the following evidence is available:
- a sticker in the area of the recess for the spare wheel
- a note in the electronic vehicle history
- an entry in the vehicle's service plan
What rights do I have in the event of a diesel driving ban?
Diesel driving bans are initially independent of the "exhaust scandal" - that is, the exhaust gas manipulation described here.
Driving bans affect certain diesel and gasoline vehicles even if there was no illegal manipulation. There are then no warranty claims or claims for damages.
We answer questions about driving bans in a separate article.
This content was created by the joint editorial team in cooperation with the North Rhine-Westphalia consumer center and our federal association (vzbv) for the network of consumer centers in Germany.
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