Are car manufacturers threatened with a new wave of lawsuits in the diesel scandal? A ruling by the European Court of Justice (ECJ) in March could be the trigger – but the big question is how the German courts will deal with it now. They are eagerly waiting to see what line the Federal Court of Justice (BGH) will take. Today, the Karlsruhe “Diesel Senate” is negotiating three model cases. It is unclear whether a verdict will be announced immediately afterwards.
According to previous BGH rulings, diesel plaintiffs are entitled to compensation if the manufacturer has deliberately deceived authorities and customers in terms of pollutant emissions – like Volkswagen with its scandalous EA189 engine. Fraud software was programmed here in such a way that millions of cars in the test emitted fewer toxic exhaust gases than they actually did on the road.
The ECJ is now setting the bar much lower: According to its judgment, the negligent use of an inadmissible exhaust gas technology can already be sufficient to trigger claims for damages. It is up to the respective EU states to determine the modalities for this. However, the Luxembourg judges point out “that national legislation must not make it practically impossible or excessively difficult to obtain appropriate compensation for the damage suffered by the buyer”.
Will the ECJ ruling turn the tide?
This means that many more diesel cars from other manufacturers come into focus all at once, in which the exhaust gas cleaning does not work equally well due to the wide variety of functionalities. Many car buyers have been suing for damages here for a long time – but so far this has been a difficult undertaking.
However, it remains to be seen whether the ECJ judgment will bring about a turning point. There are still many unanswered questions: Which forms of exhaust gas technology are not permitted at all? Courts have to clarify this in each individual case. Has the buyer suffered any damage as a result of their use? And if so, what compensation would be appropriate here?
It was already the case in the VW emissions scandal that those affected were entitled to reverse the purchase. However, they had to have the use of the car counted towards the price of the car – if you drive a lot, you get little or nothing at all. But the car is gone, a new one can be expensive. So suing wasn’t appealing to everyone. Most court cases therefore ended in a settlement.
Another point: Many functionalities that are now suspected of being an impermissible defeat device have been approved by the Federal Motor Transport Authority (KBA). The BGH judges also want to deal with the question of whether this official approval can be reviewed again by the civil courts or whether it is binding. After all, manufacturers and customers had relied on it.
Three very different cases
The assessments from Karlsruhe are urgently awaited, because due to the unclear legal situation, mass diesel proceedings have been on hold nationwide for months. Presumably in order to be able to cover as many constellations as possible, the presiding judge Eva Menges and her senate have selected three very different cases:
– One is a Mercedes diesel with a thermal window and a coolant target temperature control. Here, the delayed heating of the engine oil leads to lower pollutant emissions. The thermal window ensures that the combustion of exhaust gases directly in the engine is temporarily throttled depending on the outside temperature. Regardless of the manufacturer, thermal windows are widespread in diesel cars.
– The second plaintiff had bought a VW Passat with the EA288 engine. There is still no Supreme Court judgment on this successor to the EA189, which is in millions of diesels. In addition to a thermal window, the car also has driving curve detection.
– The third car is an Audi with a powerful engine (EA896Gen2BiT), for which there is also no BGH ruling yet. Here, the KBA had complained about a defeat device and ordered a software update – even before the plaintiff bought the car.
