Seven and a half years after the VW emissions scandal broke, it seems that diesel has gone quiet. But the calm could be deceptive: Many thousands of proceedings have been on hold in the German courts for months – because everyone is eagerly awaiting a judgment from the European Court of Justice (ECJ). Today it will be announced in Luxembourg.
What happened until now:
Actually, many questions about the claims of affected drivers have long since been clarified by the highest court. The landmark judgment of the Federal Court of Justice (BGH) in May 2020 was followed by numerous decisions from Karlsruhe on all possible individual aspects.
The linchpin is always the assumption that diesel plaintiffs are entitled to compensation if they were deliberately and intentionally misled by the car manufacturer in an immoral manner.
So far, the BGH has only seen these requirements fulfilled in the VW scandal engine EA189. Because fraudulent software was programmed here in such a way that the cars emitted less toxic exhaust gases in official tests than they actually did on the road. Those affected could return their car, but had to have the use credited to the purchase price. If you drive too much, you get nothing.
What it’s about now:
In many other diesel cars, also from other manufacturers, exhaust gas cleaning does not work equally well across the board. Law firms specializing in diesel lawsuits believe that these functionalities are also unacceptable defeat devices.
One example is the so-called thermal window: part of the exhaust gases is actually burned directly back in the engine. Depending on the outside temperature, however, this mechanism is automatically throttled – to protect the engine, as the manufacturers say. Critics accuse them of having made sure that the cars comply with the limit values, especially under test conditions.
According to the BGH criteria, there is therefore no compensation. Because no cheat mode is activated here on the test bench, the technology always works the same way. The Karlsruhe judges have therefore already dismissed several thermal window lawsuits against Daimler.
A judge at the district court of Ravensburg considers this to be wrong and bypassed the BGH and switched on the ECJ. The Luxembourg judges are very critical of the thermal window. In July 2022, they ruled that under normal conditions, it would be unacceptable to throttle emissions control for most of the year. Now it’s about liability.
Why the verdict is eagerly awaited:
The competent Advocate General of the ECJ has taken the position that someone who buys a car with an illegal defeat device has a claim for compensation against the manufacturer. If the Court of Justice accepts this proposal, it would significantly lower the hurdles for claims for damages in Germany. Fraud intentions would then no longer have to be proven.
The opinion of the Advocate General therefore caused some excitement at the beginning of June 2022. Courts of all instances have put Diesel proceedings on hold where the question matters. At the Federal Court of Justice alone, more than 1,900 revisions and non-admission complaints are currently pending, the clear majority of which have been postponed for the time being due to the expected ECJ ruling.
The Luxembourg proceedings concern a thermal window from Mercedes-Benz, as Daimler is now known. However, effects could also be expected for other car manufacturers and defeat devices. At the Stuttgart Higher Regional Court, for example, a test case on other components of exhaust technology at Mercedes is suspended.
What should remain open for now:
The ECJ does not make final judgments. Its decisions must be implemented in the respective national law. The “Diesel Senate” of the BGH has already scheduled a hearing for May 8, in which it intends to discuss the “possible consequences for German liability law” in order to provide the lower instances with guidelines as quickly as possible. This is about a VW engine, including a thermal window.
An important question would probably be how much money affected car buyers are entitled to – are the damages for negligence to be measured in the same way as for intentional fraud? It should also depend on whether a new wave of lawsuits rolls towards the car manufacturers.
