The Federal Court of Justice (BGH) has changed its diesel case law and thus improved the prospects for damages for cars with the controversial thermal window technology. The defendant automakers Audi, Mercedes Benz and Volkswagen have to pay damages if their technology is an illegal defeat device, the BGH decided on Monday. The availability of a vehicle at all times has a monetary value. “In the case of an inadmissible defeat device, there is always damage because its availability is in question.” Although the buyers could not return the cars, they could receive compensation of five to 15 percent of the purchase price, said the presiding judge Eva Menges (53). A usage advantage is deducted within narrow limits, which is based on the mileage and residual value of the car.
100,000 diesel plaintiffs can now hope
The BGH referred the cases back to the higher regional courts, which must now further clarify liability. This also applies to more than 100,000 open proceedings at the Federal Court of Justice itself and numerous courts in Germany. One VolkswagenA spokeswoman said the company expects lawsuits to be dismissed even if the case is renegotiated. VW engines would not have impermissible defeat devices. Mercedes Benz stated that in every procedure it must be clarified whether an inadmissible defeat device actually exists. But even if the courts should judge it that way, the plaintiffs’ claims are unfounded, since in his opinion the car manufacturer did not negligently violate its obligations. The technology was considered permissible until the ECJ ruling in July 2022. The cases at the BGH related to purchases made in 2017 and 2018.
On the other hand, the law firm Goldenstein, which represents more than 50,000 consumers with diesel lawsuits, said that the hurdles for successful lawsuits had dropped enormously. “In principle, in future it will only have to be proven that the respective vehicle contains an illegal defeat device.”
U-turn after ECJ ruling
The affected diesel cars only comply with the pollutant limits for nitrogen oxide at certain outside temperatures. Exhaust gas cleaning is throttled at high and low temperatures – to protect the engine. In principle, this is possible under EU law, but the limits for this were tightened by case law in the wake of the VW diesel scandal. In a case involving Volkswagen with the EA 189 engine, for example, the Luxembourg judges ruled that exhaust gas cleaning that only works between 15 and 33 degrees Celsius outside temperature is illegal. It is an inadmissible defeat device if the cleaning function does not work fully for large parts of the year. The ECJ also defined the term “motor protection” – according to this, serious damage must be prevented and not only maintenance avoided.
With the judgment, the BGH changes its previous case law. According to this, he has not seen any claims for damages so far, because the thermal window can only be assumed to be due to negligence and not intentional damage. On the other hand, the superordinate ECJ ruled in March that the buyer is also entitled to compensation in the event of negligence.
The car manufacturers have so far refused to pay compensation because their technology is legally flawless and approved by the Federal Motor Transport Authority. According to the Federal Court of Justice, the plaintiffs now have to prove that there is a defeat device in the cases to be reopened. Manufacturers must prove that this is permissible. The car manufacturers also have to prove an unavoidable error in the law that would avert compensation. They would have to show that they were not informed about the inadmissibility of their technology.