A decisive ruling by the Federal Court of Justice on the second wave of lawsuits in the diesel scandal is pending. Are many more diesel drivers entitled to compensation because of the so-called thermal windows?
Michael Schrenk from Würzburg is one of many diesel drivers who are eagerly awaiting a ruling from the Federal Court of Justice. He has sued the Mercedes-Benz Group because a thermal window is also installed in his car – and is therefore not as environmentally friendly as he would like. Most of the year, he says – with temperatures below eight and above 15 degrees – the exhaust gases are not cleaned: “Now I have a car that puts out exhaust gases at the back, they don’t smell, you can’t see them, but they’re there.”
The thermal windows involve special software that controls the exhaust gas cleaning. This is shut down or switched off completely at certain temperatures. The manufacturers argue, among other things, that this is necessary to protect the engines. The Federal Motor Transport Authority had approved the technology. Nevertheless, many car buyers have gone to court because they do not agree with the thermal windows and consider their use to be illegal.
The ECJ considers thermal windows to be generally not permitted
The European Court of Justice in Luxembourg, which has dealt with thermal windows on several occasions, considers their use to be in principle not permitted – only exceptionally if there is a risk of direct damage to the engine while driving – and therefore a concrete danger. However, until recently, German diesel drivers had little hope of compensation. This was due to the previous case law of the highest German court, the Federal Court of Justice.
This decided years ago: In contrast to the VW exhaust gas scandal, it cannot be assumed that those responsible in the car companies intentionally violated legal regulations in the case of the thermal windows. In addition, the European regulations in question would only protect the general public from dirty air and not individual drivers. Therefore, the individual motorist has no right to compensation.
Protection for every single customer
In March, the ECJ made a sensational ruling: the European standards that ban such defeat devices are also there to protect individual customers. Every affected customer must have the opportunity to take action against the manufacturer.
The Federal Court of Justice will now negotiate the consequences of this judgment by the ECJ. The BGH has received three lawsuits from diesel drivers against Audi, Mercedes and Volkswagen. The procedure was put on hold by the so-called “Diesel Senate” to await the decision from Luxembourg.
Thousands of lawsuits still pending
It is still unclear whether he will also make a judgment today. Likewise, what he decides in detail at the end – that too is still open. However, he will – or at least that is what he has announced – make specifications for the lower courts in Germany. Thousands of lawsuits are still pending there.
It is to be expected that car manufacturers will continue to state that they have not installed any illegal defeat devices. This is exactly what the lower authorities will probably have to check for each individual diesel model. This should make one thing certain: The thermal window problem and the diesel scandal will continue to occupy the German judiciary even after the BGH decision.