New trouble for VW boss Herbert Diess

Tobias Ulbrich from the Rogert & Ulbrich law firm in Cologne has filed a criminal complaint with the Trier public prosecutor. It is directed against Diess as well as the VW legal director Hiltrud Werner and the former VW chairman Martin Winterkorn. The accusation: litigation fraud.

The public prosecutor’s office confirmed receipt of the criminal complaint. “We will now check whether the criminal complaint actually gives evidence of criminally relevant behavior,” said a spokesman for the authorities. VW and Winterkorn are not yet familiar with the ad, so neither of them wanted to comment.

Rogert & Ulbrich law firm is not unknown. The lawyers have represented thousands of VW customers in the diesel scandal for years. In 2015 it became known that the vehicle manufacturer had manipulated millions of diesel engines so that they complied with the environmental limit values ​​in laboratory tests, but not in road traffic. The affair has cost Volkswagen 32 billion euros to date – most of it in the US.

In Germany, Rogert & Ulbrich were involved in a model lawsuit against Volkswagen. At the side of the consumer association, they negotiated a € 830 million settlement for around 200,000 defrauded customers.

But not every plaintiff enforced his claims in court. Diesel drivers in particular, who bought their cars after the scandal became known, have so far mostly missed out. The plaintiff’s attorneys do not want to accept that – and are now increasing the pressure on VW with their criminal complaint.

According to the advertisers, Diess, Werner and Winterkorn deceived the highest German civil court, the Federal Court of Justice (BGH). Specifically, Diess and Werner failed to correct an important ad hoc announcement by the company to Deutsche Börse dated September 22, 2015 in the proceedings before the BGH.

In this communication, VW acknowledged for the first time “irregularities in software used in diesel engines”. A few days earlier, the US environmental agency EPA had made the scandal public.

VW: “Will not tolerate any violations of the law”

The then CEO Winterkorn was responsible for the notification. In it, the VW management asserted that it would “push ahead with the investigation of irregularities in software used at full speed”. “Only” the engine type EA 189 is affected, one is in contact with the responsible authorities and the Federal Motor Transport Authority (KBA). Volkswagen does not tolerate any violations of the law.

This message, now criticize the advertisers, was wrong. Lawyer Ulbrich lists seven points that, in his opinion, are lies. At the time, Volkswagen announced that all of the Group vehicles offered at the time comply with the Euronorm 6 meet the legal requirements and emission standards. In fact, even after the ad hoc announcement, thousands of Volkswagen Euro 6 cars were recalled by the Federal Motor Transport Authority due to existing exhaust gas manipulation – for example, almost all Audi diesel models from the A4 to the Q7 of the Euro 6 emissions standard in 2018.

In addition, as VW claimed at the time, it seems that not only the EA 189 engine was affected by the manipulation, but also its successor EA 288. In the meantime, numerous civil proceedings are ongoing, and individual courts have already ruled against VW.

The group, on the other hand, denies exhaust gas tricks and defends itself in the courts against the claim that a defeat device was also used in the EA 288. “Plaintiffs’ attorneys often suggest good opportunities. In fact, 99 percent of the lawsuits are lost, ”said a company spokesman. The Volkswagen website says: “Lawyers have meanwhile collected millions of euros in fees with senseless lawsuits.”

Ulbrich does not contest this, especially since he sees another point of attack. In the ad hoc announcement from 2015, Volkswagen claimed that the software complained of had no effect on “driving behavior, consumption or emissions”. Meanwhile, according to the findings of the Federal Motor Transport Authority, the opposite has been proven. Because the software was used to comply with the exhaust gas values ​​on the test bench that were torn during road use. Volkswagen itself admitted that in the USA.

It is controversial whether the software update actually provided an effective remedy. A spokesman for VW denied negative effects, which the KBA had also determined. Otherwise, the way VW deals with misconduct has changed. “We discover faster, clarify comprehensively, work together with the authorities and punish consistently,” said the spokesman.

Thousands of open cases

The fact is that the ad hoc announcement from 2015 was not corrected by Volkswagen – neither by Martin Winterkorn, who was responsible at the time, nor by Herbert Diess, who has been in office since April 2018. Volkswagen argued with it in proceedings before the Trier Regional Court and then at the Koblenz Higher Regional Court.

As a pure legal instance, the BGH accepted them as correct in terms of content. Ulbrich has therefore sent the criminal complaint to the Trier public prosecutor. The ad hoc report should have been corrected there, stating that the original act had taken place.

The incorrect stock market report, explains Ulbrich, had serious consequences for VW customers. The BGH judges later rated them in a landmark ruling of July 30, 2020 as an indication that Volkswagen had been so refined from this point in time that the “unworthy judgment” of its previous behavior towards previous buyers was relativized in such a way “that the charge of immorality based on overall behavior no longer justified ”.

In essence, the BGH decision was therefore that Volkswagen could no longer be accused of immoral behavior since the publication of the ad hoc announcement. For Volkswagen customers, the decision of the Federal Court of Justice meant that they have hardly had a chance to enforce claims for damages for purchases of diesel cars since September 23, 2015 due to intentional immoral damage.

In fact, plaintiff Ulbrich found in his criminal complaint that all civil proceedings against VW customers who later acquired their vehicle were lost. Ulbricht suspects that there are 10,000 such procedures. His law firm alone manages 3,000 of them.

More: Why the deal in the VW process is a problem from a constitutional point of view.