A diesel buyer demands compensation from Mercedes-Benz. But is he still entitled to sue? Because in the contract for his car loan there is a clause that raises questions.
Have diesel buyers lost their right to sue because of their car loan? The top civil judges of the Federal Court of Justice (BGH) will examine this on Monday (11 a.m.) in the case of Mercedes-Benz. Whether there is already a verdict is open.
The plaintiff bought a new Mercedes GLC in March 2019 for more than 55,000 euros. He financed the purchase with a loan with a down payment from the Mercedes-Benz Bank. The contract provided for the borrower to assign current and future claims against Daimler to the bank as security, “for whatever legal reason”. According to the Higher Regional Court (OLG) in Stuttgart, which recently dealt with the case, this clause is “regularly” found in the bank’s loan conditions.
More emissions than allowed
The man later demanded compensation from the Mercedes-Benz Group, as Daimler is now known. The car is equipped with various impermissible defeat devices and actually emits more toxic exhaust gases than permitted when driving.
The question is whether the man can still sue Mercedes-Benz at all. In the opinion of the Higher Regional Court judges, he has effectively assigned such claims to the bank – for this reason alone he cannot be entitled to any compensation. However, they allowed the appeal in Karlsruhe because the Naumburg Higher Regional Court had decided differently on the same question.
Among other things, the man had complained about the so-called thermal window in his diesel. The technology, which was also used as standard by other manufacturers, comes into play when it comes to cleaning exhaust gases. So that the vehicles emit fewer toxic nitrogen oxides, some of the exhaust gases are burned directly in the engine. If the temperatures are cooler outside, this mechanism is automatically throttled. Manufacturers say this is necessary to protect the engine.
Was there an intention to cheat?
The BGH has repeatedly rejected claims for damages from car buyers because of the Daimler thermal window – just because of the use of the technology, fraudulent intentions could not be immediately assumed. There has not yet been a decision by the supreme court on other components of the exhaust technology at Mercedes-Benz. A model lawsuit by the consumer centers is also running for this purpose.
However, a judgment by the European Court of Justice (ECJ) on March 21 is eagerly awaited, which will also deal with a thermal window in a Mercedes diesel. According to the opinion of the Advocate General, it could happen that the Luxembourg judges, unlike the BGH, assume liability on the part of the manufacturer even in the event of simple negligence. That would significantly lower the hurdles for claims for damages. In Germany, therefore, mass diesel proceedings are currently on hold in all instances.
Announcement by the BGH BGH on thermal window judgments of September 16, 2021 BGH judgment on Daimler thermal windows of July 13, 2021 BGH decision on Daimler thermal windows of January 19, 2021 Consumer centers on the model declaratory action ECJ documentation on procedure C-100/ 21 BGH announcement of the hearing on May 8th