The Supreme Court (OGH) has made an important judgment in the VW emissions scandal. According to this, the buyer of a VW with an engine that only switches on the exhaust gas cleaning system in mild temperatures can return the car and demand a refund of the purchase price.
The supreme court ruled that the software installed later, which was supposed to fix the problem, again contained a “thermal window” and did not repair the damage for the buyer.
Plaintiff’s attorney: “Solver for all procedures”
“This decision is the ‘solver’ for all proceedings that are being conducted because of the original scandal engine (EA189). The claims are not yet time-barred,” says attorney Michael Poduschka, who is representing the plaintiff car buyer in this case, about the verdict. The effects on all other car brands affected by the emissions scandal are also enormous.
VW: False facts as a basis for judgment
VW, on the other hand, criticizes that the Supreme Court based its decision on incorrect facts about the thermal window in the new software. Otherwise, the supreme court would have had to recognize that the original defect was remedied with the software update, says the vehicle manufacturer.
Based on ECJ ruling
Based on a ruling by the European Court of Justice (ECJ), the Supreme Court held that switching off the exhaust gas cleaning system outside of a defined temperature range (thermo window) represents damage for the buyer, as it makes the further use of the vehicle uncertain.
According to the APA, the OGH also determined in the judgment just served that VW would have to prove that it had not even acted negligently in connection with the switch-off device for the exhaust gas cleaning system. Since the emission standards represent a protective standard, a reversal of the burden of proof applies here.
Divided opinions about consequences
From VW’s point of view, the judgment only has consequences for a few cases and not for all of the almost 1,500 cases pending in Austria. The plaintiff attorney Poduschka sees it differently. In his view, VW would now have to prove for each vehicle exactly where the thermal window is located, which would be cumbersome and expensive.
