Applied standards: BGB § 826, § 831
1. If exhaust gas recirculation, which is used to reduce nitrogen oxide emissions (NOx) in a motor vehicle, is reduced at low outside temperatures (so-called "thermal window"), this constitutes an (inadmissible) shutdown device within the meaning of Art. 5 para. 2, Art. 3 No. 10 EG VO 715 / 2007. It is irrelevant to what extent exhaust gas recirculation is reduced because Art. 5 para. 2, Art. 3 no. 10 EG VO 715 / 2007 does not differentiate according to the degree of change in the emission control system.
2. Such a defeat device is not exceptionally under Art. 5 para. 2 lit. (a) EC VO 715 / 2007 is authorized for the purposes of engine protection when other technical solutions are available, using the best available technology, whether economically more expensive or not.
3. Not necessary and thus inadmissible within the meaning of Art. 5 para. 2 sentence 2 lit. a) EC VO 715 / 2007 is such a shutdown device that operates almost continuously from an engine point of view (at outside temperatures below 14 ° Celsius) and thus runs counter to the objectives of the regulation.
4. For the existence of the exception requirements of Art. 5 para. 2 sentence 2 lit. a) EC VO 715 / 2007 hits the manufacturer with the full primary burden of proof and documentation (continuation of LG Stuttgart, 17.01.2019 - 23 O 178 / 18; LG Stuttgart, 17.01.2019 - 23 O 172 / 18; LG Stuttgart 17.01.2019 - 23 O 180 / 18).
5. If, while driving through the "New European Driving Cycle" (NEDC), an increased amount of required urea (AdBlue) is mixed in the SCR system, while in real driving this is not the case and the specific software programming involves the regeneration of SCR catalytic converters , which is required for the efficiency of the exhaust gas purification, takes place almost exclusively in the first 20 - 25 minutes of vehicle operation, ie the time that the usual NEDC cycle needs, this also constitutes an impermissible shutdown device within the meaning of Art. 5 para. 2 EG VO 715 / 2007.
6. In addition to the deception of consumers also justified the deception of the Federal Motor Transport Authority (KBA) in the approval process (EC type-approval) the immorality of the actions of the manufacturer in accordance with § 826 BGB.
7. The manufacturer is responsible for a secondary burden of explanation regarding the knowledge of the management board of the use of such an inadmissible defeat device.
8. The consequence of the secondary burden of presentation is, on the one hand, that the manufacturer can not content himself with a simple dispute, but must shake the actual presumption to a reasonable extent by substantiated counter-lecture. If he does not comply, the submission of the plaintiff is deemed to have been granted (§ 138 para. 3 ZPO). In the context of the secondary burden of analysis, the manufacturer is also responsible for investigating to a reasonable extent. Should it not be possible or reasonable for him to bring about a final clarification, it is not sufficient to inform about the failure, but rather he has to specifically state what knowledge he has gained about the circumstances of an event of infringement (connection to: OLG Karlsruhe, Note from the 05.03.2019 - 13 U 142 / 18).
9. The claim against the manufacturer of the engine can be based both on § 826 BGB and on § 831 BGB ("election determination").
10. To the preconditions to § 826 BGB in the so-called "waste gas cases" (connection to: OLG Karlsruhe, notice of the 05.03.2019 - 13 U 142 / 18, Cologne Higher Regional Court, 03.01.2019 - 18 U 70 / 18)
11. To the prerequisites of the jump revision according to § 566 ZPO, for a quick supreme court clarification with fundamental meaning.