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 waived all claims for damages by taking out their car loan? A clause of the Mercedes-Benz Bank suggests this – but the Federal Court of Justice (BGH) probably does not play along: In the hearing of a model case, the highest civil judges expressed themselves very critically.
Chairwoman Eva Menges said on Monday in Karlsruhe that her Senate considered the clause to be ineffective after initial consultations because it unreasonably disadvantaged consumers. The verdict is to be announced in six weeks on April 24th.
The plaintiff had bought a new Mercedes GLC in 2019 for more than 55,000 euros through financing from the in-house Mercedes-Benz bank. The signed contract states that the borrower assigns 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. A spokeswoman for Mercedes-Benz declined to comment.
The man later demanded compensation from the Mercedes-Benz Group, as Daimler is now known. He claims his car is equipped with various illegal defeat devices and emits more toxic exhaust fumes than permitted while driving.
So far, the main issue in court has been whether the man can still sue Mercedes-Benz at all. In the opinion of the Higher Regional Court judges, he effectively assigned such claims to the bank.
The BGH judges should now see it differently. If they overturn the judgment from Stuttgart, the next step would be for the Higher Regional Court to examine whether the conditions for possible liability are met.
Complaint about the thermal window
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.
So far, diesel buyers with thermal window complaints have had a rather bad hand. The BGH has ruled several times that Daimler cannot immediately be accused of fraudulent intent just because it uses the technology. 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.
ECJ judgment is eagerly awaited
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.
The BGH judgment on the car loan contracts should only affect Mercedes-Benz. The Berlin law firm Goldenstein Rechtsanwälte, which is very active in the diesel scandal, announced that it had examined thousands of financing agreements from car banks in this context. “As far as we know, only Mercedes-Benz Bank had the audacity to fend off claims for damages against the respective parent company through clauses in general terms and conditions.”