The Federal Court of Justice ruled today on so-called thermal windows in diesel cars. For tens of thousands of buyers, the chance of compensation could improve. The reason is new European legislation.
It was a mammoth hearing at the beginning of May at the Federal Court of Justice (BGH) in Karlsruhe. The Diesel Senate debated select diesel lawsuits for over five hours, which are exemplary of tens of thousands of lawsuits across the country. Three BGH lawyers on the plaintiff’s side, three BGH lawyers on the car manufacturer’s side met in Karlsruhe. And the argument was at a high legal level. The hearing was an “advertisement for the legal profession at the Federal Court of Justice,” praised the chair of the Senate.
The case is about shutdown devices such as the so-called thermal windows. With this technology, exhaust gas cleaning is reduced or switched off completely at certain temperatures. Many car buyers complain that for most of the year, with outside temperatures below 8 or above 15 degrees, the exhaust gases are not cleaned at all. Mercedes customer Ugur Güzelkabakci also says: “It wasn’t fair of them that a global company like Mercedes could afford something like that.” The thermal windows are a manipulation. His lawsuit is one of three selected cases that were heard in Karlsruhe on May 8th.
So far there has been no compensation
Car manufacturers have long emphasized that thermal windows are not manipulations, but are there to protect the engines. The Federal Motor Transport Authority had also approved the thermal window technology. For years, diesel customers could not hope for compensation for thermal windows. Because the Federal Court of Justice rejected all claims. He saw the legal situation differently than with the “scandal engine” EA 189 from Volkswagen.
It was about fraudulent software that manipulated test results on the test bench. The argument of the highest German civil court: In contrast to fraudulent diesel, one cannot assume that the car managers intentionally violated the law with the thermal windows. And there is no negligent liability.
ECJ sees violation of EU law
Several consumer-friendly rulings by the European Court of Justice (ECJ) then changed the situation. Last year, the ECJ initially ruled that thermal windows violate European law. They are only allowed in exceptional cases.
In March of this year, the ECJ issued a second ruling. The court in Luxembourg ruled: The EU regulations on the approval of diesel vehicles not only protect the general public from dirty air, but are also there to protect individual car buyers. They should be able to claim damages.
What compensation would be possible?
This raised the question again in Germany as to whether individual diesel buyers could now be compensated for damages. In the mammoth five-hour session before the Federal Court of Justice in May, it became clear that the chances of damages have also improved significantly with thermal windows. The judges in Karlsruhe can, under certain circumstances, come to terms with the negligent liability of the car companies.
However, the question of how high the compensation for diesel customers could be and how it is to be calculated is completely open. However, a trend could be seen in the hearing at the BGH Diesel Senate. Instead of a complete reversal of the car purchase, there could be compensation for a “damage to trust” – i.e. compensation for the fact that the buyer trusted that their car did not contain any illegal shutdown software.
Such compensation would take into account the reduced value of a diesel car with a thermal window. How the damage would then be calculated is completely open. Equally open is the question of which limitation periods apply to the millions of diesel buyers who have not yet complained about a diesel engine with a thermal window.
Much work for the civil courts
Should the Federal Court of Justice say “yes” to damages in principle today, it will make precise specifications for the lower instances. The civil courts would then have a lot of work to do.
The courts might have to take a close look at each individual diesel model: Is a prohibited defeat device really installed? And how much money is there in each individual case? There are currently tens of thousands of lawsuits in the civil courts because of thermal diesel windows.