The Hamburg district court has a VW dealer obliged to exchange a manipulated diesel car for a new car. The verdict is not yet final, but it could still help other victims.
In a VW dealership (symbol image).
Friday, 16.03.2018
16:24
Why is the verdict in Hamburg so spectacular?
For the first time a German court came to the conclusion that a VW dealer to take back a diesel vehicle of a customer with fraud software and must issue a flawless new car. The plaintiff had bought a VW Tiguan I in April 2015 and had a software update carried out in the course of the VW recall.
Have not there been other judgments of this kind?
Yes, but with the difference that so far only a few VW drivers with manipulated cars without software update could claim a claim for a new car. Now, the district court decided despite the update for the plaintiff. So far, the courts had ruled that by uploading the software update the defect was corrected,
How does the Hamburg court justify the decision?
The Hamburg judge ruled that the software update alone does not represent a sufficient remedy to remedy the defect and the customer has a right to a new car. In addition, it remains unreasonable to accept a software update as a rework, the effectiveness of which was not scientifically proven and which was tainted for an indefinite period of time. The argument put forward by the Hamburg car dealership that Tiguan I will no longer be produced, the judge countered, saying the dealer must instead provide the customer with the current model Tiguan II.
The Hamburg decision stands for one nationwide trend, According to an evaluation of the “Handelsblatt” judge more and more courts in the interests of the plaintiff in recent times. In the beginning of the exhaust scandal it looked different. Still bad cards have those affected who pull in front of the district court of Brunswick. That was especially so far Volkswagen Law. Since 2015, 1100 lawsuits have been filed against VW, around a third have been processed – Volkswagen got in 99 percent of the casesLaw.
What does the Hamburg judgment mean for other plaintiffs?
“The verdict is a pleasing victory against VW and shows that such lawsuits can be successful,” says Frederik Wietbrok, lawyer of the plaintiff in the current process Hamburg. The verdict could have an impact on current processes of VW customers, he believes. “Any ruling that fails in the exhaust scandal against Volkswagen, offers new arguments for other processes and a better chance to come to a good result for the buyer,” said Wietbrok. “Numerous judgments at the beginning of the scandal even in favor of VW on the grounds that a software update fix the existing deficiency, this position is increasingly weak,” says Wietbrok.
New lawsuits of this kind will not be available in the future. The so-called supplementary performance claim asserted in Hamburg – ie the subsequent delivery of a defect-free car – has become statute-barred since 31 December 2017. According to sales law, the supplementary performance claim usually lapses two years after delivery of the product. The claim exists only if the customer knew nothing about the defects of the product. Based on the VW scandal so only buyers could claim a Nacherfüllungsanspruch who had their car before 15 September 2015 – the announcement of the fraud by VW – had purchased. According to the sales law, the claim would actually be barred on 15 September 2017. “However, many VW dealers have renounced the statute of limitations and the customers until 31 December 2017, given to represent their car,” says lawyer Wietbrok.
Which claims for damages can buyers still claim now?
“Since 2018, only so-called tortious damages can be claimed against Volkswagen AG,” said Wietbrok. This means that the customer is not entitled to a defect-free new car, but would instead be refunded part of the purchase price, which is based on the kilometers traveled and the total mileage. An example: If a customer has bought a car with a total potential mileage of 250,000 kilometers predicted by the court, of which he himself drove 50,000 kilometers, then one fifth of this amount will be deducted from the purchase price as so-called compensation for use. If the car has cost 50,000 euros, for example, the buyer will be reimbursed 40,000 euros.
What’s up for VW?
Volkswagen had previously tried to prevent judicial verdicts by closing comparisons. Whether this strategy will work in the long term is still unclear. If such judgments pile up, it could be expensive for VW, explains Stefan Bratzel, head of the Center of Automotive Management (CAM): “If necessary, you have to calculate Europe-wide, there are around 8 million vehicles quickly a billion sum come about. ” That’s why Volkswagen has put back several billion euros, “I do not know if the reserves of the group are sufficient to absorb these risks, because there are other risks such as shareholder actions, which are also still being negotiated,” said Bratzel.
Who pays the Hamburg plaintiff now the new car – the car dealership or VW?
If it should remain in the verdict of the Hamburg Regional Court, must first pay the dealership for the damage, since the contractual relationship between the customer and the dealership was closed. In a next step, however, then the dealers could sue for damages against Volkswagen AG and assert. However, that would be many VW dealers even without the verdict already due to the low residual values of the diesel vehicles that come back to them, before major problems, Stefan Bratzel explains: “The closer possible driving restrictions come, the harder the situation for them.” VW must support the dealers therefore with measures packages, since some dealers already had to fight, continues Bratzel.
What prospect of success would have a call of the Hamburg car dealership?
That can only be suspected. It is clear, however, that VW and thus also the car dealers with each verdict, which turns out against the car maker, increasingly on the defensive. Whether the VW dealership even appeal, is currently unclear.