Justice: exhaust gas scandal: BGH examines possible claims despite the statute of limitations

In the emissions scandal, a number of diesel buyers waited too long with their claims for damages – the claims are now statute-barred.

Do you still have a chance to get money back from VW? The Federal Court of Justice (BGH) in Karlsruhe is dealing with this question for the first time. It is about so-called residual damages.

The topic is now at the center of the legal dispute surrounding the scandalous VW EA189 engine. According to the BGH spokesman, it affects a large part of the currently incoming diesel revisions. Volkswagen speaks of an almost five-digit number of ongoing proceedings. In more than 70 percent of the cases, it is a matter of used cars, the rest are new cars.

Judgment possibly same day

The BGH initially negotiated five used car cases from Baden-Württemberg and Rhineland-Palatinate. The verdict may be announced later this afternoon. However, the judges can also set an extra date for this. On February 21, another Senate will then negotiate residual damages for new cars.

The five plaintiffs, whose cases come first, actually had a good chance of receiving damages from VW. Before the emissions scandal broke out in autumn 2015, they had all bought a diesel with the EA189 engine, which only passed official tests with the help of fraudulent software – in fact, the cars emitted too many toxins on the road. The BGH has already determined that Volkswagen has systematically deceived its customers. Those affected can demand that their car be taken back, but usage will be deducted from the purchase price.

However, such claims must be asserted within three years. Normally, the deadline was the end of 2018. The lawsuits that the BGH is now hearing only reached the courts in 2020 – so most likely much too late. However, the lawyers rely on a provision in the Civil Code, paragraph 852. According to this, claims can still exist even after the statute of limitations has expired, namely if “the person liable for compensation has obtained something through a tortious act at the expense of the injured party”.

Intermediate owners are a problem

In the case of used diesels, however, there is the additional problem that at least one previous owner was an intermediary. VW is therefore of the opinion that there can be no right to residual damages here. “Because through the used car sales by dealers and private sellers, Volkswagen has not obtained anything at the expense of the plaintiffs,” said a spokeswoman on request. So far, almost all higher regional courts have agreed with VW.

The picture is far less clear when it comes to new cars, which will then be discussed in a week and a half. “It remains to be seen how the BGH will answer these legal questions,” says the Wolfsburg-based carmaker’s statement. “Volkswagen is of the opinion that § 852 BGB is not applicable to new car purchases and will explain this position to the BGH.”