This Monday is Diesel Day in Karlsruhe, by no means the first, but possibly the most important so far. The Federal Court of Justice (BGH) announces its judgments on three selected lawsuits against the manufacturers Audi, VW and Mercedes, which it negotiated in unusual detail at the beginning of May. And if the signals from the hearing were not deceptive, the proceedings could bring a decisive breakthrough in the legal processing of the diesel scandal: a claim for damages for countless diesel drivers whose cars manipulate pollutant emissions with the help of so-called thermal windows, which switch off the exhaust gas cleaning system at certain outside temperatures .
It would be a reversal in the previously very restrictive case law of the Federal Court of Justice. However, not a voluntary one, because only a ruling by the European Court of Justice (ECJ) in March forced the highest German civil court to take a more consumer-friendly line.
In spring 2020, in the early phase of the diesel judgments, the BGH had awarded VW buyers damages when it came to the scandalous EA189 engine. It was equipped with special fraud software that switched to cleanliness mode as soon as the car was tested for the effectiveness of its exhaust gas cleaning system on the official test bench. On the other hand, the engine got dirty again on the road. The BGH rated such a targeted manipulation as “deliberate and immoral damage” and awarded damages. In a comparison, VW paid around 620 million euros to more than 200,000 diesel drivers.
But for the large number of diesel cases, the legal approach to intent and immorality, laid down in paragraph 826 of the German Civil Code, proved to be unsuitable. Because a thermal window, i.e. a control of the exhaust gas recirculation depending on the temperature, was not automatically a cheat software in the interpretation of the BGH as with the EA189. It was not specifically designed for the test bench. It was also argued that the curtailment served to protect the engines. A rather ambiguous motive situation, the BGH found – one could not speak of intent and immorality. So not an 826 case.
With its judgment from the spring, the ECJ has now recommended another paragraph to the Karlsruhe colleagues, 823 paragraph 2. The provision is used when a law intended to protect motorists has been violated – and after the ECJ judgment the EU rules on type approval are such a protective law.
Thermal windows are installed in millions of diesel vehicles
From a legal point of view, you are entering a terrain where it is much easier to win compensation for damages. First of all, the ECJ – engine protection or not – considers thermal windows to be permissible only within very narrow limits; he is thus signaling that in most cases they are more likely to be classified as illegal defeat devices. And secondly: According to the new paragraph, it is sufficient that the car manufacturer acted negligently when using the thermal windows. This is an easy hurdle to overcome.
If the BGH decides in this sense, it will be easier for many buyers to enforce compensation. But that’s not the end of all the questions. Because after such a fundamental decision, the dispute is likely to begin in the lower courts as to when a thermal window is really to be classified as an illegal defeat device and when it is possibly primarily used to protect the engine. Thermal windows are installed in millions of diesel vehicles, in very different engine types and with different temperature ranges. So a thousand technical questions to be clarified, a feast for engine experts.
It is also not entirely clear how high the respective compensation could be. During the hearing, the BGH had signaled that it would probably not result in “large damages”, i.e. a reversal of the purchase against credit for the kilometers driven. Rather, the Diesel Senate has in mind a new form of “average” compensation, compensation for the trust that has been disappointed by the sale of an unclean diesel. It should therefore be about compensation for the loss in value of the car. You will have to look at the verdict for the exact calculation modalities, but the presiding judge has already found an impressive legal term: “difference hypotheses-compensation for damages based on trust”.