With a landmark ruling, the European Court of Justice (ECJ) in Luxembourg has significantly increased the chances of many diesel drivers being compensated. Until now, the Federal Court of Justice (BGH) had made the lawsuits of injured car buyers subject to strict requirements. They had to prove to the car manufacturers “deliberate immoral damage” through the use of manipulated exhaust gas recirculation – a difficult legal hurdle to overcome. As a consequence of the ECJ ruling, the German judiciary must now lower this threshold to a very buyer-friendly level. According to this, simple negligence on the part of the car manufacturer when installing the defeat devices is sufficient.
The buyer of a used Mercedes C 220 CDI of the generation Euro 5, whose engine contains a so-called “thermal window”, had complained. The exhaust gas recirculation is already reduced at temperatures above zero degrees, the car then emits significantly more harmful nitrogen oxide. The exact temperature values of the thermal window remained controversial in the process. The Ravensburg district court submitted the case to the ECJ to clarify contentious issues surrounding compensation.
The buyer must be able to rely on what the type approval promises
The key to making legislation more buyer-friendly is how to classify the European regulations for type approval of such engines. The BGH was of the opinion that they were only intended for traffic safety and – in general – for health and environmental protection. The ECJ, on the other hand, does not share this restrictive view. In his opinion, the type approval and the associated certification that the specific engine corresponds to the approved type serves to protect the individual buyer. The provisions are intended to protect those affected from being sold unauthorized vehicles.
This fundamental change in legal interpretation has dramatic consequences for many thousands of pending claims for damages. For all manufacturers, because the legal principle is independent of the engine type. Because the European guidelines for type approval are to be classified as “protective law” according to the ECJ, a provision in the Civil Code applies, which provides for damages even in the event of simple negligence. This should be easy to prove to the manufacturers in connection with the trickery in diesel engines.
From the point of view of lawyer Remo Klinger, who was involved in these proceedings, the BGH cannot back down from this judgment, but will have to decide claims for damages according to the lowered standards of the ECJ. With a view to the proceedings, the BGH had postponed a diesel case to May 8th. In the lower instances, too, large numbers of diesel proceedings were postponed in order to await the ECJ ruling.
It could still be controversial in the processes when a thermal window really is to be classified as an inadmissible defeat device. But here, too, the ECJ made it unmistakably clear, as in the previous year, that thermal windows are only permissible under very strict conditions. This is when the exhaust gas recirculation system causes serious risks for the engine and thus becomes a real risk of an accident. And according to the ECJ, even the engine protection argument must not lead to the fact that the exhaust gas recirculation remains switched off for the majority of the year – because otherwise the goals of pollutant reduction would be restricted disproportionately. In short: Here, too, the ECJ urges that greater account be taken of the interests of diesel buyers.
The ECJ insists on “reasonable compensation”
The ECJ’s statements on the question of whether motorists must have their “benefit in use” offset against the compensation if they have driven for years with the dirty but functioning diesel are less clear. The ECJ leaves this to the national courts, but insists on “appropriate compensation”. Sanctions must be “effective, proportionate and dissuasive”.
It is not entirely clear what role the administrative courts will play here. The Schleswig Administrative Court recently classified a 2016 software update for a VW Golf with a two-liter Euro 5 diesel engine as an illegal defeat device. In total, the German Environmental Aid has filed 119 lawsuits against approval notices from the Federal Motor Transport Authority because of such updates. This means that there are proceedings in both the administrative and civil courts on the issue of illegal defeat devices. Remo Klinger therefore thinks it is conceivable that the civil courts in the damages proceedings will first wait for the judgments of the administrative courts.