Diesel plaintiffs who received compensation from Daimler demand, should go away empty-handed in many cases. When they first pronounced their verdict in a “thermal window” procedure, the judges of the Federal Court of Justice (BGH) confirmed on Tuesday that they do not consider the use of the technology to be immoral. At the same time, they insisted that other allegations of manipulation by the plaintiff against the Stuttgart car manufacturer should be investigated. (Az. VI ZR 128/20)
Thousands of car owners are demanding compensation from Daimler because of the so-called thermal window in many Mercedes diesels. The “thermal window”, which was also used as standard by other manufacturers, plays a role in exhaust gas cleaning. To ensure that diesel cars emit less toxic nitrogen oxides, some of the exhaust gases are burned again directly in the engine. When it’s cooler outside, the thermal window keeps fewer exhaust gases in the car. The manufacturers say this is necessary to protect the engine. The plaintiffs see this as an inadmissible defeat device – as at VW.
Volkswagen had secretly used fraudulent software in millions of diesel cars, which in government tests disguised the fact that too many pollutants were actually emitted.
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For the highest civil judges of the BGH, however, this is the main difference to the Daimler thermal window: There is no software that switches to another mode when the car is being tested, said Senate Chairman Stephan Seiters in Karlsruhe. The thermal window always works the same, whether on the road or in a test. Its use alone is therefore not enough to trigger liability for damages. This would require indications of “particularly reprehensible behavior” on the part of those responsible for Daimler. “This has not been established in the case of dispute,” the BGH decided.
BGH sees no “particularly reprehensible behavior” at Daimler
Seiters’ Senate had already made a very similar statement in writing in January. Now, for the first time, a case had been heard. Daimler welcomed the decision and announced that it was “the guiding principle for thousands of legal proceedings in Germany“.
However, the case is still ongoing. Because the plaintiff had also assumed that Daimler was using a number of other inadmissible devices for manipulating exhaust emissions. Among other things, there is the allegation that there was a function in the coolant system that served to push the nitrogen oxide values in official tests below the actual level in normal road traffic.
This comes “as a starting point of immoral behavior into consideration” and should have been examined in the lower court at the Higher Regional Court (OLG) Koblenz, said Seiters. The plaintiff based his allegation on four media reports. No more could be expected of him, technical details could not be expected. The OLG must now deal with it again and, if necessary, commission an expert opinion.
Nonetheless, consumer advocates speak of success
Daimler announced that they were “assuming that the OLG will continue to reject the lawsuit even after it has been referred to again”. So far, the regional and higher regional courts have ruled in favor of the company in around 95 percent of the cases in the diesel proceedings.
The law firm Dr. Stoll & Sauer, which is currently preparing a model declaratory action against Daimler for the consumer advice centers, assessed the judgment as a “clear success for consumers”. It’s no longer just about the thermal window. The Goldenstein law firm, which represents thousands of Diesel plaintiffs, also spoke of a “signal effect”. So far, the courts have not adequately investigated allegations.
The consumer advice centers want to have a court establish that Daimler has used other devices in addition to the thermal window that were actually intended to fool the authorities. This also includes the coolant system. However, the lawsuit focuses on almost 50,000 cars from the GLC and GLK sports off-road vehicle series with the OM 651 engine type, for which the Federal Motor Transport Authority had ordered recalls.
The plaintiff’s C-Class also has such an engine, but is not one of the models that are to be examined carefully in the test case. According to the BGH, she was also not affected by an official recall. The man had bought the car new in 2012 for around 35,000 euros. He wants Daimler to reimburse him for the purchase price minus the number of kilometers driven.
rei / DPA