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Über dieses Buch

This book explains, compares and assesses the legal implications of Dieselgate within a range of selected jurisdictions and at the EU, international and comparative law level.The book analyses the US EPA-VW $14.7 billion dollar settlement of 2016, one of the largest civil settlements in the history of environmental law. As it shows, the Dieselgate affair has raised a host of issues concerning corporate and social responsibility, tort liability, environmental liability, contractual defective products, warranty, and false environmental claims in a range of jurisdictions. Issues like repurchasing or retrofitting cars from consumers and making direct payments to consumers through car buy-backs and compensation are analysed. Further, the book relates how Dieselgate has also contributed to the discussion about the introduction of more effective collective measures of redress for consumers, such as class actions, in Germany, France, Italy and the UK.The book subsequently reviews the criminal offences Volkswagen is currently confronted with in Germany, France and Italy, i.e. fraud and manipulation of capital markets (by belatedly providing shareholders with essential information relevant for the share value), and, potentially, environmental crimes. It demonstrates how Dieselgate has sparked new debates in Germany, Italy, France and the UK about the need to introduce enterprise liability for organised crimes, lack of compliance and control structures, and intentional violations of the law.Lastly, the book discusses how EU law has sought to respond to Dieselgate and thus investigates the controversial EU Regulation No. 2016/646 introducing a "temporary conformity factor" of 2.1 (equivalent to a 110% increase on the current limit) to be applied for NOx in the new RDE testing cycle, and the works of the EU committee of inquiry into Emissions Measurements in the Automotive Sector (EMIS).

Inhaltsverzeichnis

Frontmatter

National Perspectives

Frontmatter

France

Abstract
The Dieselgate had a significant impact in France. The domination of the diesel technology in the internal market as well as the popularity of the German group place France in a peculiar situation. One year after the crisis, Volkswagen has no assurance of its fate: the judgments that will take place in France are a major challenge to the German manufacturer, who has commercially managed the crisis but whose reputation is seriously damaged. The essay examines the civil and criminal proceedings brought in France against Volkswagen and its various brands.
Laurent Posocco

Germany

Abstract
The manipulation of exhaust emission standards through electronic devices in about 11 million Volkswagen cars worldwide, labeled Dieselgate, has given rise to one of the greatest industrial scandals in Germany in the last decades. Made public by a notice of violation of the US environmental protection agency in November 2015, its economic and legal consequences are still not foreseeable. The present contribution focuses on a crucial dimension of the scandal: the legal situation of buyers, mostly consumers, of manipulated cars under private and—as proof of criminal offenses may largely facilitate liability claims against Volkswagen—criminal law. Its main sources are German legal literature and the first national court decisions on the matter, which deserve to be presented to a foreign audience. Concluding that, contrary to the situation in criminal law, the available remedies under private law are not sufficiently effective, the contribution joins recent calls for the establishment, on the model of capital market law, of a collective action in consumer law to enhance the legal position of consumers.
Christoph U. Schmid

Italy

Abstract
The Italian Competition Authority ruled that Volkswagen AG and Volkswagen Group Italy S.p.A. had jointly breached the Italian provisions concerning unfair commercial practices, implementing EU directives, and convicted the two companies to pay the maximum fine provided by Italian law (5 million euros). For the Italian Authority such practices, expressly admitted by VW after the scandal with specific advertisements published on Italian newspapers, were unfair, contrary to the requirements of professional diligence and were likely to distort the economic behavior of consumers. The Italian Authority stated that the conduct of Volkswagen AG and Volkswagen Group Italy S.p.A. was unfair, as the “green claims” or “environmental claims” used in their advertisements were in contrast with the evidence of real NOx emissions manipulated by the illegal defeat device. Also in the US similar proceedings are pending. After this decision the Italian consumers’ will be able to sue VW at the competent Courts claiming damages through specific follow-on actions.
Giovanni Posio

United Kingdom

Abstract
One in every three cars on UK roads is fuelled by diesel (www.​smmt.​co.​uk—Facts and Figures), and according to VW, just under 1.2 million cars in the UK are affected by Dieselgate (http://​www.​volkswagen.​co.​uk/​owners/​emissionsinfo). As such, it is unsurprising that Dieselgate has been widely reported in the UK. Yet the reaction in the UK has perhaps been modest compared to the US, where litigation and a proposed class settlement are underway.
Stephen Turner

United States of America

Abstract
On 18 September 2015, a United States Environmental Protection Agency (EPA) news conference shocked both the environmental and automotive worlds alike: Volkswagen AG (VW) admitted to installing software, called a defeat device, that artificially reduced emissions in hundreds of thousands of diesel automobiles, making the cars appear to pass the EPA’s emissions testing, but, when driven in the real world, increased the car’s emissions from 10 to 40 times the legal limit. These cars sold, in-part, for their environmental benefits were now the subject of a massive, multi-agency EPA investigation. Within weeks, VW would reserve billions of dollars in anticipation of the expense, its CEO would resign, and litigation and government enforcement actions would begin. This chapter provides the legal background for defeat devices, describes the discovery of VW’s emission irregularities, and presents the structure of some of the United States legal actions against VW. It concludes with some thoughts about the future of this issue and emissions testing.
Joseph Allan MacDougald

Specific Issues

Frontmatter

Civil and Consumer Law

Abstract
This chapter provides an overview of the main foreseeable consequences of Dieselgate in the perspective of private and consumer law. The analysis takes into account the remedies and the taxonomy of the liabilities involved. The choice between individual and collective redress leads to the discussion about class action application in the different countries. The issue of the certification of class by judges is considered with examples taken from Brazilian and Italian cases. In conclusion the author reviews some lessons that can be learned from a case that crosses the line between regulation and enforcement, individuals’ rights and public interest.
Giorgio Pedrazzi

Corporate and Insurance Law

Abstract
The purpose of this chapter is none other than to assess from the angle of Directors’ and Officers’ Liability Insurance to what extent the VW investigations and admissions of liability could affect the D&O insurance market. There are several scenarios that, in one way or another, will impact D&O insurance for example: company’s liability for breaching anti-pollution rules, directors’ liability to the company for breach of directors’ duties, class actions against VW by consumers, class actions against VW by company shareholders and investors, actions against directors by third parties, actions against directors by environmental agencies, regulatory investigations, product recall, to say nothing of one of the most neuralgic areas ‘Defence Costs Cover’.
Arguably, the German two-tier board system will soon be providing answers should the supervisory board decide to bring proceedings against the executive directors of VW. On the other hand, the UK D&O market is still attentive and awaits further developments.
This chapter aims therefore to provide some responses to the proper construction of a D&O policy and assess whether the liabilities incurred by potential VW wrongdoers are covered under standard insurance wordings of this type.
Adolfo Paolini

Criminal Law

Abstract
The Dieselgate, from the point of view of criminal law, committed the Italian and other EU prosecutors in the correct qualification of possible crimes. These crimes range from the crime of fraud in trade to the crime of environmental disaster, suggested by prosecutors in Turin. These crimes are prosecutable ex officio, thus without the need of the injured party’s impulse. The marketing of a vehicle that does not comply with EU law requirements on emissions’ control could make the product different from that stated, as expressly provided by Italian standards (and EU standards in general) in addition to causing serious environmental damage. However, in Italy, from the point of view of criminal law, consumers’ reaction has been prudent, since consumers are traditionally loyal to the Volkswagen brand and more interested in financial compensation rather than criminal punishment of responsibles. However, the attention of associations of consumers and public prosecutors is much higher. The feeling is that, after more than 1 year, the remedial conduct implemented by Volkswagen has stemmed the damage, thus reducing the criminal consequences and impact of the Dieselgate worldwide. However, potentially, there are crimes which provide for very heavy penalties.
Marisa Marraffino

Environmental Law

Environmental Claims
Abstract
This essay considers the possible backlashes of the Dieselgate from the standpoint of the rules on unfair commercial practices. It examines the state of the art in the major jurisdictions involved in the matter and focuses on the question whether environmental claims may be characterized as unfair commercial practices.
Sara Landini

The Environmental Dimension of the Dieselgate: a European and International Legal Perspective

Abstract
This chapter analyses the regulatory approach adopted by the European Union and its Member States with regard to control of emissions from cars, and norms of corporate social and environmental responsibility. Volkswagen A.G. appeared as one of the most responsible car-maker according to sustainability index rating. Despite a well-established code of conduct was in place, the company has been exposed to an epic scandal, which unveiled many shortcomings of emissions tests which involve several car-makers, certification companies, EU institutions, States and their regulatory authorities. The role and responsibilities of these actors need to be clarified as well as a serious assessment of the existing regulations, monitoring and compliance systems needs to be undertaken.
Francesca Romanin Jacur

European Union Law

Abstract
The essay describes the evolution of European Union law on vehicle pollution and the measures taken, at European level, in the period before and immediately following the Dieselgate. The scandal, which broke out in the United States, quickly spread worldwide: several doubts have been raised about the efficiency of European institutions and especially the Commission. The Dieselgate has therefore contributed to raise questions regarding the quality of European Union law in the light of environmental protection. The essay deals particularly with the legality of new limits on NOx emissions levels established by Commission Regulation 2016/646 of 20 April 2016 and the introduction of new emission tests to be executed on the road in place of the traditionally laboratory-based tests adopted by car approval authorities. The essay also analyses the work done by the Committee of Inquiry into Emission Measurements in the Automotive Sector to investigate alleged contraventions and maladministration in the application of European Union law in relation to emission measurements in the automotive sector.
Marco Frigessi di Rattalma, Gabriella Perotti
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