Image: (dpa)
In connection with the diesel scandal of the German car giant VW, VW’s liability for fraudulent intent was already legally established by the German Federal Court of Justice (BGH) in 2020. The European Court of Justice (ECJ) also signaled in 2022 that the thermal window used by VW is not permitted. Now there is a first judgment on a class action lawsuit in Austria. The court affirmed VW liability, according to the VKI, but appealed against what he considered to be insufficient damages.
“Clearly below the bar”
From the point of view of the Association for Consumer Information (VKI), the average compensation of 4 percent of the purchase price planned by the regional court of St. Pölten is “well below the bar”, it said in a broadcast on Monday. The regional court of St. Pölten deviated massively from numerous, far higher awards from other Austrian courts in individual proceedings.
In addition, no compensation is provided for some of those affected with certain vehicle models. “This means that the current case law of the German BGH on damages for thermal windows is not taken into account by the St. Pölten regional court,” writes the VKI, justifying its appeal against the judgment.
“Incomprehensible in many ways”
“Such a small amount of compensation is incomprehensible in many respects,” commented VKI chief lawyer Thomas Hirmke on the verdict. The expert report on which the judgment is based has a number of shortcomings. Attempts have already been made to clarify this during the proceedings. “Essential points relating to the database from the so-called Eurotax list were not taken into account. It is not for nothing that experts in at least 100 individual Austrian proceedings are awarded damages of between 10 and 30 percent of the purchase price paid.” That is on average five times the amount awarded by the regional court in St. Pölten, according to Hirmke.
However, the St. Pölten court, on the basis of an expert report – in contrast to numerous individual proceedings – awards an average of only 4 percent of the purchase price as damages. Owners of some Skoda and Seat models should also receive no or only very little compensation. According to the expert report, the replacement often does not exceed 200 euros in many cases.
700 affected
In the proceedings in St. Pölten, the VKI represents 700 victims, for whom damage of around four million euros is claimed. As in all VKI class action lawsuits, 20 percent of the purchase price paid was sued. This is one of 16 class action lawsuits brought by the VKI to the respective regional courts in Austria on behalf of the Ministry of Social Affairs and the Chamber of Labor (AK) and with the litigation financier Omni Bridgeway.
The value of this class action lawsuit amounts to a total of 60 million euros. Around 10,000 victims are represented by the VKI in court.
According to the VKI, the regional court in St. Pölten rejects all of VW’s objections to the alleged lack of liability in its current judgment and confirms that the original “switching logic” is an inadmissible switch-off device, as is the case with the thermal window. According to the court, the damage is to be determined at the time of purchase and any benefits are not offset.
“Intentional Harm”
The recent judgment of the German Federal Court of Justice is also not taken into account in the current decision of the St. Pölten Regional Court. According to this, those affected would be entitled to 5 to 15 percent of the purchase price if a thermal window was installed negligently – also because of the required deterrent effect. “If 5 to 15 percent of the purchase price is due as compensation for negligent damage caused by the thermal window, then the compensation for intentional damage in connection with the original manipulation of the software must necessarily be higher overall,” concludes Hirmke. “You should therefore be able to assume damage of at least 15 percent of the purchase price.”
Ultimately, the compensation granted cannot be reconciled with the mass settlement concluded by VW in Germany with 260,000 vehicle owners. Because there, on average, around 15 percent of the damage was paid by VW. Obviously an amount that VW itself considers appropriate, the VKI believes.
Fight for “fair compensation”
“We will therefore continue to fight for appropriate compensation for those affected,” says Hirmke. “There is absolutely no reason why customers who have suffered damage from VW should be treated worse in Austria than in Germany.”
The FPÖ praised the work of the VKI. One would wish, however, that the government would strengthen the role of the association. On the other hand, savings are threatened, according to the liberal consumer protection spokesman Peter Wurm in a broadcast. The VKI is dependent on the discretion of the governing parties ÖVP and Greens because the VKI financing law has been removed from the current budget and the association has only been “fobbed off with non-binding financing commitments”.
According to information from Social Affairs Minister Johannes Rauch (Greens) in the Consumer Protection Committee of Parliament in May, the financing is secured until 2025. In any case, Wurm warns against a piecemeal dismantling of the VKI and called for new elections.
A never-ending story
The VW diesel scandal is practically a never-ending story. It has engaged consumers, their protectors, VW, attorneys and courts for many years. According to the VKI, there are now a significant number of lower-instance and also highest court decisions in Europe, most recently several decisions by the European Court of Justice (ECJ) in connection with the so-called thermal window. In its judgment of March 21, the ECJ confirmed again that a thermal window in the vehicle could only be permissible under unlikely conditions – with the consequence that those affected are entitled to appropriate compensation.
The first decision of the Supreme Court (OGH) on an Austrian case has also been available since February 2023. According to this, VW must take back the affected vehicle if desired and pay back the purchase price.
Source: Nachrichten
