Progress of the lawsuit
The Goal
The foundation’s ultimate goal is to find a reasonable and fair solution in consultation with Volkswagen c.s. for all injured European owners affected by the diesel scandal. A solution in which Volkswagen c.s. take their responsibility and in which the injured car owners can continue to use their cars at no cost and without any (future) risk.
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One possible result the foundation may achieve is to reach a settlement with the respondent parties. This may be an out-of-court settlement, but also a so-called WCAM settlement. In the case of a WCAM settlement, the respondent parties and foundation will ask the Amsterdam Court of Appeal to declare the agreements they have made universally binding. As soon as these agreements have been declared universally binding, the settlement will apply to all affected car owners. Only car owners who indicate on time that they do not want to participate in the settlement are excluded from the collective scheme.
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In the ongoing lawsuit, the foundation has requested the Amsterdam District Court to declare that Dutch car owners are authorized to return the affected vehicles to the Dutch dealers (authorized Volkswagen dealers) and to receive a full refund of the purchase price. For consumers and business drivers who have purchased the affected cars second-hand, the foundation is demanding a declaration that Volkswagen c.s. have acted unlawfully.
If the District Court honours the foundation's claims in the current proceedings, car owners may use this judgment in a subsequent procedure. In that procedure, they may either claim the damage suffered because of Volkswagen c.s. or terminate their purchase agreement. The foundation will support the car owners who have joined as much as possible in this.
WHERE WE ARE NOW
The lawsuit against Volkswagen AG has started. This lawsuit consists of several phases. Below you can find more information on each phase.
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The court has determined that the hearing in Phase 3 (substantive hearing) will take place between May 25 and June 3, 2021. The court notes that the direction of the European Court of Justice in the Volkswagen diesel emissions scandal is sufficiently clear with the December 17, 2020 decision in case C-693/18, so that the Foundation's proceedings against Volkswagen et al. can be continued.
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The court has informed the Foundation that it has provisionally scheduled the session date in the third phase in the second quarter, in the period May 17 to 28, 2021. This is in view of the pending proceedings against Volkswagen before the European Court of Justice and the ongoing covid-19 measures. The court has given all involved parties the opportunity to make a proposal on January 6, 2021 on how the proceedings will be continued. The court's main principle is to guard against unnecessary delay in the proceedings. This means that the hearing will be scheduled as soon as reasonably possible.
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The court initially decided that a hearing would take place on 25 May, 26 May and 28 May 2020 in Phase 3. Due to corona, these hearing days have been postponed to be determined by the court.
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In phase 3, the court will assess the substance of the Foundation's claims. The court has determined that all defendants must respond in writing to the claims of the Foundation on 26 February 2020. A hearing in phase 3 will take place on 25 May, 26 May and 28 May 2020.
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All other defences raised by defendants in phase 2 were rejected by the court.
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The claims of the Foundation against Volkswagen, Audi, Škoda, SEAT, PON and the dealers will be assessed under Dutch law. Part of the claims against Bosch are governed by Dutch law. Another part will be judged under German law.
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Part of the debate in the second phase was also the question of whether it is plausible that Dutch motorists have suffered damage as a result of Dieselgate. The defendants argued that there would be no damage. With the help of your input, the Foundation has substantiated that Dutch drivers have been (financially) harmed in various ways, because their cars are equipped with fraudulent software and the majority of the cars are now also equipped with the faulty (software) update. The court followed the Foundation's position. It considers it plausible that such damage may have been suffered.
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The court has ruled that all claims of the Foundation against Volkswagen, Audi, Škoda, SEAT, PON and Bosch are suitable for consideration in the collective action proceedings.
This also applies to the Foundation's main claims against the official Volkswagen dealers, i.e. the possibility for certain drivers to terminate the purchase agreement due to error or non-conformity. The question of whether in such a case a user fee may be withheld will be assessed for each car owner in a subsequent procedure. The Foundation believes that none of the dealers should be able to deduct a usage fee.
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On 7 October 2019 there was an oral pleading in the second phase of the procedure. This second phase focuses on formal questions, including (i) whether the Foundation is competent to defend the interests of car owners in these proceedings and (ii) which law applies to the claims of the Foundation against Volkswagen c.s. and Bosch. All parties involved explained their views to the court during the hearing. At the end of the hearing, the court decided that it would rule on 20 November 2019 in the second phase of the procedure.
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The second phase has started. The Court will raise a number of formal questions, after which it will examine the content of the claim in phase three. The District Court of Amsterdam has decided to give all parties - after exchanging written documents - the opportunity to explain their views orally during a plea in the second phase. The oral pleading will be held on Monday 7 October 2019.
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During the first phase, only the former board members of Volkswagen objected to the jurisdiction of the District Court of Amsterdam. Volkswagen A.G. and the other defendants accepted the jurisdiction of the District Court of Amsterdam.
Since the proceedings against the defendants will be dealt with simultaneously, the proceedings against the former drivers would delay the progress of the proceedings against Volkswagen A.G. and the other defendants. The Foundation considers this undesirable. In order to speed up the proceedings, the Foundation has therefore decided to remove the former directors from the current proceedings. The second phase, in which the District Court will raise all kinds of other formal questions, can be started forthwith. The former directors can then be involved by the Foundation in a separate procedure.
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On 6 November 2018, a pre-trial review took place. The goal was to make procedural agreements that prevent unnecessary delays during the trial.
The procedure will be split into three phases. Today the Court of Amsterdam ruled that its authority to adjudicate this case should be dealt with first. Next, a round will follow in which all sorts of formal questions are discussed, and finally the substance of the foundation's claims will be evaluated. The court has decided to maintain tight deadlines and that neither party will be granted postponement. As far as the foundation is concerned, this is good news. The sooner there is a verdict, the better it is for the owners of affected cars.
The foundation expects the Court of Amsterdam to rule in the first phase of the procedure before the summer of 2019.
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In her writ of summons, the foundation has requested that a pre-trial review be held before the substance of the case is dealt with. The foundation has made this request in order to make arrangements with the respondent parties (and the Court of Amsterdam) to ensure the procedure is as efficient as possible. The Court of Amsterdam has approved the pre-trial review. The pre-trial review will take place on 6 November 2018.
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On 2 May 2018, an administrative session took place in which all the respondent parties reported to the Court of Amsterdam, represented by their lawyers.
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In December 2017, the foundation summoned the respondent parties to appear before the Court of Amsterdam on 2 May 2018. The foundation chose a term that left ample time for the respondent parties to enter into discussions with the foundation about a solution proposed by the foundation. Unfortunately, the respondent parties have not entered in discussion with the foundation.
The preparation
Starting a lawsuit requires extensive preparation. This preparation had a number of important moments, which you will find below.
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In the run-up to the proceedings before the Court of Amsterdam, the foundation sent (various) letters to the respondent parties. The foundation sent letters in November 2015 (to Volkswagen AG), April 2017 (to Volkswagen c.s., Bosch and the dealers), June/July 2017 (to Volkswagen c.s. and Bosch) and December 2017 (to all respondent parties). In these letters, the foundation described the developments in the Volkswagen emissions scandal and explained why the foundation believes that the respondent parties should compensate the injured car owners.
Furthermore, both in her letters and through other channels, the foundation has invited Volkswagen c.s. to enter into conversation in order to find a real solution for all injured car owners together. Unfortunately, Volkswagen c.s. did not accept any of those invitations from the foundation. Even after the foundation sent a draft of the summons to the respondent parties and deliberately chose a long period of time before the proceedings at the Court of Amsterdam, no discussions were held. The foundation therefore felt compelled to continue the proceedings before the Court of Amsterdam.
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Hans de Savornin Lohman has been appointed as a member of the Supervisory Board of the foundation. The Supervisory Board consists of Hans de Savornin Lohman and Marten Oosting. With more than 25 years of litigation experience, Hans will follow the main developments in the trial and support the team of lawyers however possible.
You can read more about Hans de Savornin Lohman's background and his reasons for joining the foundation under his profile description.
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The foundation is very pleased that Marten Oosting has become a member of the foundation as chairman of the Supervisory Board. You can read more about the former National Ombudsman and his reasons for joining the foundation in his profile description.
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Guido van Woerkom has become the director of the foundation. You can read more about Guido's background and his reasons for joining the foundation in his profile description.
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The foundation has appointed Fausto Pocar as chairman of the foundation. Fausto Pocar has been acting in the interests of others for years and has a wealth of experience. Among other positions, Fausto Pocar is a judge at the International Criminal Court in The Hague and a member/chairman of the Yugoslavia Tribunal.
You can read more about Fausto Pocar's background and his reasons for joining the foundation in his profile description, which you can find here.
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The foundation has appointed the law firm AKD as the foundation's lawyer. AKD specializes in collective actions and will provide legal support to the foundation.
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The foundation has appointed Arie van der Steen as treasurer of the foundation. Arie van der Steen has decades of experience as an accountant at various companies. His management experience is also welcomed at the foundation.
You can read more about Arie van der Steen's background and his reasons for joining the foundation in his profile description, which you can find here. -
On 1 October 2015, the Volkswagen Car Claim foundation was established. You can read the statutes here.