Düsseldorf This story started with a call from a press spokesman for Volkswagen at the Handelsblatt. He reported a few days earlier because of the interview of this newspaper with Michael Heese, The law professor from Regensburg practiced harsh criticism of Volkswagen and certified cheated customers in their claims for damages excellent opportunities.
Whether the Handelsblatt knew who it had gotten involved in, asked the VW spokesman. “We have heard that Heese works for the plaintiffs.” Where would scientific independence be?
It was a good question. The diesel affair engages the German judiciary intensively, In the US, Volkswagen has admitted that it has massively manipulated its diesel engines to emit many more pollutants than allowed.
From legal prosecution VW bought in the US with 20 billion dollar free, in Germany denies the concern that its customers were damaged at all. Who wants his right, must complain.
In court, both sides argue with opinions and specialist articles by supposedly impartial lawyers. At a hearing at the Higher Regional Court of Braunschweig, it was the presiding judge himself who referred to a reasoning by Professor Heese. What if heese was paid for his remarks by the interested plaintiff?
Heese responded to the question of his backers with indignation. An outrageous insinuation, the professor called the hint from Wolfsburg that he had bought his scientific independence. “So far, I have not been involved in the ‘Dieselgate’ cause for any of the pages concerned, ie for rewards.”
Faced with the professor’s answer, the VW spokesman withdrew his statement. The reference of the judge at the Higher Regional Court of Brunswick to an essay Heeses was probably misinterpreted. It seems to be a “possible misunderstanding”.
The question of the VW spokesman is not wrong. What are the legal opinions that professors wrote in specialist articles and reports? Are there any who have been paid by one side or the other?
The answer comes from Volkswagen. “In the context of well over 500,000 contested claims in Germany alone, we have around two dozen reports commissioned,” says VW spokesman Christopher Hauss.
These are in each case reports on different legal issues that have not yet been clarified by the highest court. Given the high number of lawsuits and unresolved legal issues, the approach of Volkswagen is common.
One of the professors, who is said to have been commissioned by VW in this way, is called Thomas Riehm. The civil lawyer from the University of Passau also writes specialist articles, such as the question of whether Volkswagen cheated on customers and thus must compensate under the so-called tort law.
In the “New Legal Weekly Magazine (NJW)” Riehm came to the conclusion in early 2019: “Substantial liability for damages of manufacturers of manipulated diesel vehicles can not dogmatically justify.”
For clients or judges who study the topic and read Riehm’s essay, it would be helpful to know who funded it. But this information remains the “NJW” guilty.
In a footnote, the professor from Passau pointed out that the contribution was “a request from practice”. Whether this came from the VW camp, is not there. Riehm did not answer on demand.
Amazing restraint
Christian Armbrüster also represents a clear position for each car manufacturer. The law professor researches and teaches at the Freie Universität Berlin, which recently defended its “Excellence” award as one of the best universities in Germany. In the “Journal of Business Law” appeared in May 2019, the article “Manufacturer Liability for exhaust gas manipulated vehicles”.
Author Armbrüster wrote: “Neither the contract nor the tort law offers purchasers of exhaust manipulated vehicles a solid basis to claim the manufacturer for reimbursement of the purchase price can.” Like his colleague Riehms also mentioned Armbrüster not a word who his involvement with the Diesel affair alimented.
On the other hand, the professor explains profusely why the legal opinion of the Oberlandesgericht Braunschweig was “fully upheld”. The Brunswick judges, who make their judgments 40 kilometers away from the Wolfsburg VW headquarters, are regarded as the bastion of the corporation. Armbrüster does not write in his essay that most other courts judge against Volkswagen and the customers.
The question of whether he received money from Volkswagen, does not want to answer Armbrüster. “As it is required in scientific publications, as I understand it, I refer to this fact in articles in the publication, which are based on legal opinions. With this reference, it’s generally my case with him. “
This restraint links him to Kai von Lewinski. The professor has a law professorship at the University of Passau. In early 2019 he wrote an essay entitled “Nullity of fiduciary assignments to collection service providers”.
A complaint of such a service provider was “unfounded for lack of legitimacy,” writes Lewinski. He does not write that VW must face exactly the same complaint in the diesel affair.
Complacency reports, one-sidedness of the argument and any hint of partiality contradict the professional ethos of the scientist. Matthias Jaroch, German University Association
The case lies with the Federal Court. Around 30,000 diesel customers have ceded their claims to the legal service provider Myright. Lewinski mentions in his paper that his essay in the “Monatsschrift für Deutsches Recht” (“Monthly for German Law”) continues considerations that were “the subject of a report for practice”.
Who paid him for the report? “I do not want to say that,” replies the professor. The client did not want to be named.
Volkswagen confirms that. “We attach importance to the fact that the readers of the juridical articles can recognize, on which basis the respective articles originated,” says Sprecher Hauss. That does not mean, however, that under such an order must be that Volkswagen paid the author. Judges and principally readers of trade journals could classify this accordingly.
According to the German University Association this is not enough. “Just the hint that an essay from a request from the private sector goes back is not enough,” Association spokesman Mathias Jaroch says and is clear: “Pleasure report, one-sidedness of the argument and any hint of partiality contradict the professional ethos of the scientist.”
Jaroch emphasizes that there should be no compromise on transparency and disclosure of potential conflicts of interest: “For the German Higher Education Association, impartiality is essential for German science. Professors must therefore clarify in essays or other publications, whether and from whom they have received grants. “
How this works, shows an essay by Klaus Tolksdorf, until 2014 BGH President. The honorary professor of the University of Münster produced a report for a legal service provider. The business model is legally not objectionable, summarizes Tolksdorf. In the first footnote, he makes it clear: “The article has emerged from legal opinions commissioned by the Financial Rights for submission in civil proceedings against Volkswagen AG.”