analysis
Owners of diesel cars with a defeat device can now sue for the reduced value of the vehicle and hope for compensation. The Federal Court of Justice had always rejected it.
The Federal Court of Justice (BGH) today changed its case law on illegal defeat devices. With the so-called thermal windows, the diesel exhaust gas cleaning is reduced or even switched off completely. Diesel buyers complain that the emission control does not work properly for most of the year. Tens of thousands have complained about it. So far without success, the Federal Court of Justice has so far ruled at the expense of diesel customers.
In March of this year, however, the European Court of Justice intervened. The vote from Luxembourg: Compensation for illegal defeat devices must be possible.
The BGH is turning around
The BGH is now following this line. If there is an illegal defeat device within the meaning of EU law, then this is a loss for the buyer and there can be compensation for damages.
The confidence of the buyer would be protected, said Eva Menges, the chairwoman of the Diesel Senate of the Federal Court of Justice when the verdict was announced. In favor of the buyers, the “wealth of experience” that they “did not buy a vehicle with an illegal defeat device at the agreed price” had an impact.
Compensation for damages also in the event of negligence
So far, damages have only been awarded in the event of intentional immoral damage to diesel customers. The current verdict is different than that of the VW scandalous engine EA 189. It was about fraudulent software that had manipulated test results on the test bench.
Attorney Matthias Siegmann, who represented one of the three plaintiffs before the Federal Court of Justice, emphasizes that compensation for damages is now also possible if one can only prove negligence on the part of the manufacturers when installing a defeat device.
Reduced value of five to 15 percent of the purchase price
The Federal Court of Justice has now made it clear: In contrast to the VW scandalous engine, customers with thermal windows cannot return the car and cannot reclaim the entire purchase price. But you can now sue for the reduced value of the vehicle. And this within a framework of at least five and at most 15 percent of the purchase price paid. BGH lawyer Matthias Siegmann gives an example: Anyone who bought a car for 60,000 euros could try to sue for a reduction in value of around 7,500 euros.
The lower instances now have to clarify exactly how high the reduction in value is. However, the civil courts would not necessarily have to obtain an expert opinion for this, but would have a “discretionary assessment”, according to the BGH. According to today’s ruling, it is particularly important for suing customers to prove that a thermal window or other defeat device is installed in their car.
Car manufacturers defend the thermal window
Here the manufacturers fundamentally deny that the thermal windows are such an illegal shutdown device. After the hearing, VW lawyer Martina De Lind van Wijngaarden pointed out that the Federal Motor Transport Authority (KBA) had approved the thermal window technology. That’s what the manufacturers claim. And they say: Because of the approval, the manufacturers are not at fault. They would not have intentionally or negligently harmed their customers.
According to today’s ruling by the Federal Court of Justice, they also have to prove this in the lower instances. You have the burden of proof that you have informed the KBA in detail about the thermal window technology. In 2022, however, the ECJ ruled that thermal windows violate European law and are only permitted in exceptional cases.
Lots of work for the lower authorities
After today’s verdict, at least one thing is certain: compensation for damages due to negligently installed thermal windows is possible. How high that is in individual cases must be clarified by the lower courts. Because theoretically there can be deductions from the five to 15 percent compensation.
In addition, it will have to be clarified in each individual case whether an inadmissible defeat device is actually present. If so, the car manufacturers can still claim that they have not acted negligently, for example. But the car manufacturers would have to prove that themselves, says the BGH.
A lot of work will now have to go to the lower courts, where an estimated 100,000 complaints about illegal defeat devices are pending. What is certain is that the diesel defeat devices will keep the German courts busy for years to come.
Via ZR 335/21, Via ZR 533/21, Via ZR 1031/22