The Federal Court of Justice has strengthened the legal position of customers in a decision on VW diesel affair. Lawyer Sven Jürgens explains what is unusual about it – and how the diesel driver benefits.
Demo against diesel driving bans in Stuttgart
Saturday, 23.02.2019
21:09 clock
SPIEGEL: Mr. Jürgens, your client is due to a VW diesel vehicle with a so-called shut-off device for the emission control, a Tiguan 2.0 TDI, until before the Federal Court drawn. Now he has withdrawn the lawsuit at the last moment. Did not he want a judgment?
Jürgens: Yes, he wanted to fight it, that’s a highly emotional thing. The diesel buyers They felt cheated, and in addition to that VW compensated very generously for the customers in the USA, and here they tried to derail them with a software update. The people were really upset. And my client also needs his car in the city – diesel driving bans could have affected him, it threatened even the decommissioning of the vehicle.
SPIEGEL: After the Federal Court of Justice (BGH) issued a detailed ruling in this case at the beginning of January, you have withdrawn the lawsuit, the hearing has thus burst. What happened – does your client get a newer model as a replacement? Or does he get money?
To person
Sven Jürgens, is a Berlin lawyer and has been practicing law for 20 years. He represents mainly policyholders and consumers. He is a specialist lawyer for employment and insurance law and mediator. In the VW diesel scandal, he has now obtained the first court decision of the Federal Court of Justice (BGH), in which this gave evidence to answer central legal issues.
Jackson: Unfortunately, I can not say anything in detail. But it is correct, as requested by the client, I have withdrawn the revision.
SPIEGEL: In other cases, VW or the car dealers involved have quickly come to an agreement with the buyers when a judicial defeat has become apparent. They wanted to avoid having a judgment that other plaintiffs could then invoke.
Jackson: That’s right, in early January, another VW diesel method has already burst at the BGH. Then the matter is settled, possibly in the interest of the plaintiff, otherwise he would not have withdrawn the lawsuit. But there is no judgment.
SPIEGEL: Did the BGH no longer want to put up with this and make its legal opinion known without a verdict?
Jackson: That was probably a strong motive. Although such a legal reference is in itself something normal, a court explains in advance how it intends to decide on the basis of the factual and legal situation, so that one can concentrate on these points during the negotiation. However, it is very unusual for such a decision to be published, rather than a verdict, when the proceedings are over.
SPIEGEL: What could have been the reason?
Jürgens: This fulfills a dual purpose: First, the lower courts need legal certainty, and secondly, this was perhaps also a kind of self-protection. Otherwise, more and more new procedures to the BGH, he prepares extensively the procedure, and just before the trial, all say: “sentence with X, was probably nothing”.
SPIEGEL: What significance does this resolution have for other proceedings?
Jürgens: A very high. This has a similar impact as a judgment. The resolution has 19 pages and contains very clear points, which is longer than many a verdict.
FAQ on the BGH decision
SPIEGEL: What has the BGH rightly pointed out?
Jürgens: On the one hand, that according to the current state, such a shutdown device represents a material defect. And that a buyer in principle has warranty rights against the dealer: So he can withdraw from the sale, demand a price reduction, repair or replacement of a faultless vehicle.
SPIEGEL: Was not that clear before?
Jürgens: The courts have long been heavy with it. In many cases, courts have also decided that it is indeed a defect, but not a significant one, so nothing that affects the use of the vehicle. Individual courts, such as the Oberlandesgericht Braunschweig, even said that the deficiency had been adequately asserted after we submitted expert reports on a regular basis. Since you feel already kidding.
SPIEGEL: Your client could have demanded a subsequent delivery on the basis of the notification decision, ie a new vehicle?
Jürgens: At least the lower courts would not have been able to iron that off so easily, one would have to negotiate again. My client had bought his car in July 2015 and when the events became known, immediate re-delivery was required. From 2016 there was a model change at the Tiguan. Therefore, the judges had previously said that because the model my client bought was no longer produced, he could not claim a new car. The BGH has now declared that this claim should not be so easily ironed.
SPIEGEL: What does that mean for other processes?
Jürgens: The courts are well advised to align themselves with the BGH concept. This is an excellent means of pressure for car buyers. So far, many courts have already swung in anyway, based on a material defect, but the decision has now largely ended the discussion.
SPIEGEL: Your client had no software update. What is different in such cases?
Jürgens: That’s difficult. On the one hand, this can be an advantage because it creates new warranty claims that are not yet time-barred. But it can also be a disadvantage, because you can virtually no longer prove the lack of the car had previously. If you do something like that, you should first have the performance of the car documented by an appraiser.
SPIEGEL: Many cases are now barred, right?
Jürgens: The big one, yes – if no lawsuit has yet been filed and if no special circumstances are added. But this only applies to VW – other manufacturers, where the cheating later became known, such as Mercedes, are not yet affected by the statute of limitations.
SPIEGEL: There are also claims against the manufacturer himself, from producer liability. Is there hope here now through the BGH decision?
Jürgens: Unfortunately, I do not see it that way. There it is about “intentional immoral injury”. You have to prove a damage, so especially a depreciation of the vehicle by the Abschalteinrichtung. However, used diesel has lost a lot of its value, even with other manufacturers. What is there on the general debate about driving bans and electric cars is due and what the defeat device, can hardly be substantiated in individual cases. For the pattern-finding suit, which is pending against it, I also tend to see black. Especially now that just now the courts in Brunswick are responsible – and these are the ones who have so far, perhaps because of their proximity to Wolfsburg, so far always decided on VW-friendliest.
SPIEGEL: Will the lawsuit against VW dealers and the Group now abate?
Jürgens: However, we are right in the middle of the lawsuit for claims made in court. New procedures are unlikely to be added.