Judgments on the diesel scandal: from fraudulent software to thermal windows



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As of: 12/28/2021 8:20 am

The emissions scandal has long since reached the Federal Court of Justice. However, not all of the issues raised by the diesel scandal have been resolved by the highest court. What has already been decided under civil law and what is still open? An overview

By Hannah Eberhard and Claudia Kornmeier, ARD legal editors

Five years after the VW diesel scandal broke up, the time had come. The Federal Court of Justice (BGH) ruled in a landmark ruling in May 2020: By installing the illegal defeat device, VW intentionally harmed its customers in an immoral manner. The group therefore has to pay damages to affected customers. However: For every kilometer driven, customers have to deduct a certain amount of cents. For those who drive a lot, this means in case of doubt that they will not get any money at all. In addition, the plaintiff had to return their car in return.

VW with delay tactics

VW tried to delay this fundamental judgment as much as possible. With generous comparative offers, the car company repeatedly succeeded in breaking negotiations before the higher regional courts and the Federal Court of Justice. For diesel buyers, this meant: the longer it took, the more kilometers they had driven their cars and the more they had to be deducted from the compensation in the end.

It still has to be clarified whether this crediting of the kilometers driven is at all compatible with EU law. Several courts had referred this question to the European Court of Justice. Here, too, some procedures were settled through comparisons. Others are still pending in Luxembourg. Plaintiffs who have meanwhile accepted a settlement or whose proceedings have been concluded could no longer benefit from a possible ECJ decision at the expense of VW.

Comparison in the model procedure

In parallel to the individual lawsuits, the Federal Association of Consumer Organizations initiated a model declaratory action against VW. In such a procedure, a consumer association sues instead of the individual consumer in order to have legal issues clarified in a binding manner for all those affected who join the claim.

Before the Higher Regional Court of Braunschweig it was to be decided whether VW had deliberately harmed its customers in an immoral manner. But there was never a judgment. The consumer association and VW agreed on a settlement. The car company offered the sample plaintiffs 15 percent of the purchase price. They could also keep their cars. According to the consumer advice center, more than 240,000 consumers accepted the offer.

Myright class action

The copyright class actions against VW are still open. The legal service provider has had claims for damages assigned by numerous affected parties in order to collectively sue them in the courts for the diesel buyers. In return, Myright demands a success fee from the plaintiffs. VW is of the opinion that this business model violates German law. A decision by the BGH is still pending. Judgments from the past show, however, that the highest civil court tends to be open to such business models.

Resale, Financing and Statute of Limitations

Following its landmark ruling, the BGH has clarified a number of other questions for diesel customers in the past few months. For example: Anyone who resells their car is still entitled to compensation. And those who bought in installments can request that the extra costs for the financing be reimbursed.

The BGH also clarified the statute of limitations. Customers who already knew about the diesel scandal in 2015, but did not file a suit until 2019 or after, received nothing. According to the law, claims expire after three years. However, VW has to prove that buyers already knew about the scandal in 2015 – simply referring to the broad media coverage is not enough.

Is the dealer also liable?

Diesel buyers had not only sued the car company, but also the car dealers. In these cases, the BGH ruled that a car with an illegal defeat device is defective in terms of sales law because there is a risk that it will lose its registration. When buying a new car, those affected have special rights within the first two years: As a rule, they have the choice between a free repair or an exchange for a new vehicle.

Thermal window – also not allowed?

In the course of the VW exhaust scandal, another exhaust technology came into focus: so-called thermal windows. This is a device that switches off the emission control in the vehicle at certain temperatures. Both VW and Daimler customers are convinced that this is an illegal defeat device and that they have been immorally deceived. The European Court of Justice made it clear: The emission control system should only be switched off in order to protect against sudden engine damage that could lead to a specific danger while driving. Protection against wear and tear or contamination alone does not justify switching off the exhaust gas cleaning system.

According to the BGH, the mere installation of thermal windows is not enough for immoral damage. Because unlike the illegal VW shutdown device, thermal windows worked in the laboratory as well as on the street. There must therefore be additional circumstances to justify the immorality. The regional and higher regional courts must clarify on a case-by-case basis whether these circumstances exist.

Lawsuits against Audi

There are also numerous lawsuits against the group subsidiary Audi at the BGH. On the one hand, there are cars in which the VW engine with the illegal defeat device was installed. And secondly, about cars with an engine developed by Audi. The BGH decided on the installed VW engine: Audi only has to be liable if there are concrete indications that someone in the company knew about the fraudulent software. Several judgments by the Munich Higher Regional Court, which gave detailed reasons for this assessment, recently withstood a review in Karlsruhe. In the case of its own Audi engine, on the other hand, it is still unclear whether Audi intentionally harmed its customers in an immoral manner.


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