Secret VW report exonerates Martin Winterkorn in fraud proceedings

REUTERS / Wolfgang Rattay

The legal processing of the diesel scandal is probably even more complex than the data processing of the software with which VW once manipulated millions of diesel vehicles. Customers argue for damages in civil courts. Managers and engineers fight for their existence in labor courts. And while the company has acknowledged the exhaust gas cheat all over the world and paid fines in the billions, the question of whether anyone in Germany has committed any criminal offense is still unclear. In any case, a confidential legal opinion on behalf of Volkswagen comes to a clear result: not a single VW employee is said to have been guilty of fraud to the detriment of customers.

For five and a half years, the Braunschweig public prosecutor’s office has been investigating almost 100 suspects under file number 411 JS 49032/15. She has already indicted many of them. In particular, the world public is waiting for the criminal trial against the former VW boss Martin Winterkorn, which is now due to start in September. The responsible regional court in Braunschweig had previously taken a long time to examine the prosecution’s allegations against Winterkorn and Co. In this so-called interim proceeding, according to information from, Volkswagen has now also submitted the 212-page report that supposedly tears the suspicion of fraud against its former and active employees to pieces.

According to the overall result of the legal opinion, those responsible at VW have not made themselves criminally liable for fraud through the sale and sale of manipulated diesel cars. Accordingly, there was no relevant act of deception, writes the renowned criminal law professor Frank Saliger from the Ludwig Maximilians University in Munich. The inadmissible defeat device was not a “traffic-relevant property”, as it had no negative relevance for approval. The retrofitting of the affected vehicles required by the Federal Motor Transport Authority only cost the customer a minimal amount of time. Therefore, because of the simple solution, the “material defect” is insignificant under criminal law and “unfit for deception”.

There would also be no mistake, writes Saliger. As a rule, car buyers would not think about technically complex systems in a vehicle. They would also have had no idea whether an inadmissible defeat device existed or not.

Appraiser sees no damage

In addition, Saliger does not recognize any pecuniary damage, which is, however, necessary for a fraud criminal offense. For example, the risk of the vehicles concerned being shut down by the registration authorities was merely abstract. According to the report, the diesel vehicles were criminally usable for the contractually stipulated purpose. There is no scientific evidence that the cars have a lower resale value as a result of the software update. Other reasons for damage from civil law could not be transferred to criminal law due to the constitutional differences, says Saliger.

In fact, the civil judges of the Federal Supreme Court ruled a year ago that VW systematically deceived its customers with the EA 189 scandal engine and that many plaintiffs therefore have the right to return their manipulated diesel for a partial refund of the purchase price. There could also be a similar development for the successor EA 288. Here, too, a higher regional court has now sentenced Volkswagen for the first time to pay damages.

Originally, the car manufacturer had also commissioned the legal opinion in order to avoid higher damages payments in civil courts. Apparently they did not want to wait for the slow mill of the judiciary. “The paper should serve as a firewall,” says a VW manager, because many customers accused managers of criminal behavior in their lawsuits. As an involuntary side effect, the assessment of Saliger has now landed in the files of the Winterkorn case, it is said. The Regional Court of Braunschweig had requested it in the course of the investigation into the indictment.

The extensive expert opinion did not succeed in the judge in charge rejecting the historical indictment against the ex-VW boss. According to the relevant decision, however, it has overtaken the work of the public prosecutor’s office in numerous places. The fraud allegation is now justified with a pretended honesty on the part of the VW group. A derivation that, according to some legal experts, is breaking new legal ground.

All of this is part of a chain of weak points in the indictment. recently revealed an expert opinion in which the Federal Motor Transport Authority (KBA) could not even say with certainty whether the manipulation software has an important influence on compliance with limit values.


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