The “Diesel Senate” of the BGH is looking for answers to fundamental questions about the liability of car manufacturers for illegal defeat devices. The exit is open. Clarity should prevail on June 26th.
Car buyers who take action against car manufacturers because of allegedly illegal defeat devices in their cars can now expect compensation – but the prerequisites for this still have to be clarified. The Federal Court of Justice (BGH) in Karlsruhe discussed for hours on Monday whether plaintiffs are entitled to a complete reversal of the contract or at least a kind of “small compensation”. The “Diesel Senate” seemed to be inclined towards this attitude.
Buyers would then keep their vehicles or could not return them for a refund of the full purchase price. Rather, they would then be compensated for the so-called reduction in value: i.e. the difference between a functional car without a possibly inadmissible defeat device and the car with the defeat device that was actually received unwittingly.
The Senate must transfer a judgment of the European Court of Justice (ECJ) from March to German law: In March, the Luxembourgers had significantly lowered the hurdles for damages and decided that even negligent action by the car manufacturer can be sufficient for a claim for damages. According to the previous BGH line, such a claim only existed if the manufacturer had deliberately tricked the authorities and customers with pollutant emissions – as VW had done with the scandalous EA189 engine.
Three model cases: Mercedes, Audi and VW
Three model cases relating to Mercedes, Audi and VW vehicles were negotiated. All three verdicts are scheduled to be announced on June 26. Deactivation devices are installed in all cars, which change the emission values. In the case of VW, for example, a so-called thermal window, which throttles combustion in the EA288 engine or even shuts it down completely depending on the outside temperature. Mercedes is about a car in which a coolant target temperature control is installed in addition to a thermal window. Here, the delayed heating of the engine oil leads to lower pollutant emissions.
The third car is an Audi with a powerful engine (EA896Gen2BiT), for which there is also no BGH ruling yet. Here, the Federal Motor Vehicle Office (KBA) had complained about a defeat device and ordered a software update even before the plaintiff bought the car. The KBA had informed the public about this in a press release. The Senate indicated that in this particular case, the buyer should have known that their car was already subject to a recall and that the right to compensation could be affected or even lost.
Thermal windows are installed in millions of diesel vehicles, each with a different temperature range. Which of the thermal windows are actually inadmissible must probably be considered and clarified individually in many cases. Various car manufacturers are now in the focus of the BGH, where the exhaust gas cleaning also does not work consistently well due to the wide variety of functionalities. Many car buyers have been suing for damages here for a long time. Thousands of procedures had been put on hold to await the ECJ ruling.
The lawyers for the car manufacturers argued on Monday that – as in the case of VW, for example – there had been unrestricted type approval by the KBA and the manufacturers had relied on it. However, the Senate expressed doubts as to whether this would undermine claims for damages. In addition, the lawyers for the car manufacturers asserted that the buyers did not necessarily suffer “real” damage: the car worked.
Still many open questions
Many questions are still unanswered: Which forms of exhaust gas technology are not permitted at all? Has the buyer suffered any damage as a result of their use? And if so, what compensation would be appropriate here?
It was already the case in the VW emissions scandal that those affected were entitled to reverse the purchase. However, they had to have the use of the car counted towards the price of the car – if you drive a lot, you get little or nothing at all. But the car is gone, a new one can be expensive. So suing wasn’t appealing to everyone. Most court cases therefore ended in a settlement.
The assessments from Karlsruhe are urgently awaited, because due to the unclear legal situation, mass diesel proceedings have been on hold nationwide for months. Presumably in order to be able to cover as many constellations as possible, the presiding judge Eva Menges and her senate selected the three very different cases.