BGH on VW emissions scandal: entitlement to successor model?

Before the Federal Court of Justice it is once again about the VW emissions scandal. In no less than four proceedings, the BGH has to decide whether buyers of an affected new car are entitled to a replacement with the successor model.

After the VW emissions scandal became known, a number of affected customers took legal action. Many took direct action against the car manufacturer, others against their dealerships. Some plaintiffs went both ways. While the lawsuits against VW have now been largely resolved, apart from individual questions, the lawsuits against the sellers are still preoccupying the courts. This is also due to the fact that Volkswagen made many settlement offers in order to prevent a decision by the highest court as far as possible. In four proceedings before the Federal Court of Justice further questions of purchase law should now be finally clarified.

Software update or replacement of a successor model?

Specifically, it is particularly about the question of whether the buyer is entitled to a new vehicle, even if it is a successor to the vehicle originally purchased, or whether he has to be satisfied with a software update. In the present proceedings, four buyers some time ago – in 2009 and 2010 – each acquired a new car with an EA189 diesel engine. All of them reached out to their salesman after about seven or eight years and asked for a new vehicle, but at that point it was no longer in production. The buyers refused a software update.

How did the lower courts decide?

Half of the plaintiffs won and half lost. The Cologne Higher Regional Court awarded two buyers the right to have a new vehicle delivered. In the opinion of the judges, a model change in the meantime does not change anything – even if it was imminent when buying. The decisive factor is the point of view of the parties, and according to this, a new generation vehicle is also suitable to meet the buyer’s claim for subsequent delivery. The buyer does not have to get involved in a cheaper software update. It is not clear what consequential problems would arise from this; for example, increased consumption, lower mileage or higher volume. Even the fact that the successor model is more expensive does not change anything (Ref .: 18 U 59/18; 6 U 24/19).

The Saarland Higher Regional Court saw it differently, where the buyer of an Audi A 5 Sportback lost. A subsequent delivery of a car from the current model series would be disproportionate, the judges decided. That costs around 10,200 euros and is therefore much more expensive than reworking with just 100 euros. In addition, the buyer did not correctly state that installing the software update would lead to new problems on the vehicle (Ref .: 2 U 92/17). The Schleswig-Holstein OLG saw it similarly (Ref .: 6 U 43/19).

Effects of a Supreme Court Decision

According to Volkswagen, there are now only a few comparable cases before the courts. The automaker speaks of a “middle two-digit number”. For those affected, however, the highest court clarification by the eighth civil senate should be groundbreaking.