The news came as a surprise to Johannes Thielmann *. “To settle the case,” one offered a “one-off payment of € 3,000,” wrote Daimler lawyers at the end of January. Alternatively, the car – a Mercedes Benz GLK 220 Blue Tec 4Matic – can also be bought back or accepted for payment.
Thielmann had a good feeling after the appointment at the district court, but he did not expect this suggestion. From everything he had heard so far, Daimler was clearly on the point of view that it had done nothing illegal when it came to diesel gates.
The Handelsblatt asked the carmaker: Are such comparisons a school now? Is the Stuttgart group suddenly approaching customers who claim that Daimler has manipulated the so-called thermal window in many diesel models to manipulate exhaust gas values in an illegal manner? A so-called “thermal window” in the Daimler engines ensured that the cleaning of the poisonous gases only worked in a narrowly defined temperature range, otherwise it was switched off.
Daimler confirmed that there are comparisons, according to a group spokesman, “in the double-digit range.” He did not want to say why Daimler is getting involved. The spokesman emphasized that the company continues to consider claims by diesel customers to be unfounded. The plaintiffs’ success rate before the regional courts would be less than five percent.
However, the comparisons are not counted, Daimler remains vague in the number of offers. Ralph Sauer from the plaintiff’s office Dr. Stoll & Sauer, who represents client Thielmann, sees a pattern in the behavior of the car manufacturer. If a defeat looms in court, there is an increasing number of comparative offers.
“The Frankenthal case shows how much Daimler shies away from the judge’s decision,” says Sauer. Explanation: The regional court there submitted a case against Daimler for a preliminary ruling to the European Court of Justice in Luxembourg. Before a decision was reached, the lawsuit before the Frankenthal district court was withdrawn by mutual consent. “Most likely, Daimler compared itself to the consumer,” says Sauer. Daimler did not want to comment on this on request.
The Berlin law firm Gansel is also observing movement at the Stuttgart automaker. “Daimler is beginning to approach customers who feel they have been harmed in the diesel scandal and are therefore taking action against the group,” says Sebastian Schlote, lawyer at Gansel. The group now regularly offers comparisons. According to their own statements, more than 20 such cases are currently on the table of the Berlin law firm.
Setback before the BGH
Daimler’s willingness to compare itself with plaintiffs could be connected with a setback before the Federal Court of Justice (BGH). The highest German civil court put an end to the automaker’s policy tactics on January 28. So far, Daimler has refused to submit notices to the Federal Motor Transport Authority in lawsuits – and has brought plaintiffs in need of evidence. The BGH made this strategy much more difficult.
Plaintiff lawyers see the decision as a decisive weakening of the auto company. “We now represent a large number of victims here and see that the courts are turning in a clearly consumer-friendly direction,” says Andreas Baier from the Karlsruhe law firm Baier Depner Rechtsanwälte. “The chances for owners of Daimler vehicles to now also receive damages have increased again significantly due to the BGH decision.”
From Daimler’s point of view, the decision has no consequences. Complaints were still to be dismissed. However, it cannot be ruled out that “the courts will in future be more likely to provide evidence of plaintiffs’ claims,” said a spokesman.
But that should be bad for Daimler. So far, the carmaker had vigorously tried to deny the plaintiffs an insight into its engines – and to keep the recall notices of the Federal Motor Transport Authority secret.
In the meantime, the office has justified in several notices why it assumes that Daimler has incorporated illegal software into various diesel models. The software is said to have regulated exhaust emissions in such a way that the vehicles on the test bench complied with the exhaust gas limits, while driving dirty on the road.
Daimler denies illegal behavior – but has so far not submitted the KBA notices to the courts, despite requests. At the same time, the group’s lawyers alleged that the plaintiffs lacked evidence of illegal defeat devices. They would rather poke in the fog and claim things “into the blue”. In such cases, a court must generally dismiss the application – without being allowed to provide evidence of the plaintiffs’ claims.
The BGH now clearly contradicted. The court said the diesel plaintiffs should not be asked too much. This applies in particular, according to the BGH, if they could only rely on suspected facts “because, due to a lack of expertise and insight into the production of the … vehicle engine, including the exhaust gas recirculation or reduction system, they could not have reliable knowledge of individual facts”.
Insight into the engines
According to the BGH, it is sufficient if plaintiffs refer to the KBA’s list, according to which the engine of their car is affected by a recall. In addition, they only have to describe the shutdown device in simple words. In the specific case, it was the OM 651 engine that Daimler often installed. These considerations “together with the lecture, (….) The Stuttgart public prosecutor’s office initiated an investigation into this type of engine in March 2017 due to the installation of an inadmissible shutdown device (…) sufficient tangible evidence of the existence of a material defect. “
For Daimler, this means that more experts are now allowed to look into the vehicles. “The prospects of success of the customers concerned have improved significantly,” said lawyer Lars Murken-Flato from the law firm Hahn. “With the decision, all those courts and judges who have already been sentenced to damages or who have initiated the investigation of the scandal by taking evidence are given a boost.”
Ultimately, pressure on the group is also growing from another side. A decision by the European Court of Justice, which is considered to be consumer-friendly, is expected soon. The submission to the ECJ comes from the French judiciary. At their instigation, the Advocate General at the CJEU Eleanor Sharpston is expected to comment on April 30 whether some car manufacturers have installed illegal shutdown devices and deceived buyers. The thermal window will also play a role. As a rule, the court follows the vote of its advocates general.
Plaintiff Johannes Thielmann will wait for these developments. He has decided to reject the comparison offer made by Daimler lawyers.