Compensation for diesel plaintiffs – almost everything seemed to have been said about this. But suddenly a lot is open again. Because the European Court of Justice (ECJ) is pursuing a much more buyer-friendly line than the Federal Court of Justice (BGH) so far. Will the Karlsruhe judges agree? And who could benefit? There should be first indications today at an eagerly awaited negotiation date.
What is the starting position?
The BGH has paved the way for hundreds of thousands of people affected by the VW emissions scandal to claim damages. But since his first and most important judgment in May 2020, the principle has applied: only those who have been deceived by the car manufacturer about the pollutant emissions in an immoral way have claims. That was the case with the VW scandal engine EA189. Because fraudulent software was programmed here in such a way that the cars switched to a special mode in official tests – and then released less toxic exhaust gases than they actually do on the road.
Which plaintiffs have had a difficult time so far?
In many other diesel vehicles, also from other car manufacturers, the emission control does not work equally well across the board. An example is the throttling depending on the outside temperature. Critics accuse the manufacturers of having designed the responsible functionalities in such a way that the cars comply with the limit values, especially under the conditions that prevail in the typical test situation. These are also illegal defeat devices. So far, however, the BGH has seen no basis for damages as long as no cheat mode is activated – because technically everything always runs the same in principle.
What does the ECJ have to do with it?
The Luxembourg judges recently set the hurdles in a Mercedes case from Germany significantly lower. Claims for damages could therefore arise from simple negligence. The reason given in the judgment of March 21st is that the manufacturer assures every single customer when they buy that their new car meets all EU requirements. In the case of a car with an inadmissible defeat device, however, this promise is not kept. If the buyer suffers damage as a result of such a defeat device, he is therefore entitled to “reasonable compensation” according to the ECJ.
What does this mean for diesel drivers?
Your chances of getting compensation should have increased for the time being – always assuming, of course, that there is an illegal defeat device in the car at all. It is still unclear whether it is worth going to court. The requirements from Luxembourg must be implemented in Germany. However, the Supreme Court has a certain amount of leeway. And nobody knows where the journey is going. That’s why everyone is now looking so excitedly to Karlsruhe.
Which questions could play a role?
According to the ECJ ruling, damages are only an option if there is any damage at all – a central question should therefore be what this could consist of. Certain functionalities were subsequently objected to by the Federal Motor Transport Authority (KBA), for others there is still official approval today. Under these circumstances, is the manufacturer to blame? And if customers are entitled to compensation: How is this to be calculated? Even immorally deceived VW diesel buyers must allow the kilometers driven to be offset against the original purchase price in the case of reversal. If you are unlucky, there is hardly anything left at the end.
Can all of this be sorted out in one day?
Probably not down to the last detail. The matter is further complicated by the fact that there are many different vehicle types and configurations. A so-called thermal window, in which the exhaust gas cleaning system sometimes runs full or throttled depending on the outside temperature, is absolutely common in diesel engines, for example. The temperature windows are designed differently depending on the manufacturer and the car – so one thermal window could be permissible, the other not. The BGH “Diesel Senate” selected a VW, an Audi and a Mercedes case for the hearing. One car was affected by a KBA recall, the other two were not.
When can a verdict be expected?
At the BGH it can happen that the decision is announced directly on the day of the hearing. Otherwise an extra date will be scheduled for this. Presiding judge Eva Menges will only announce more details. Despite the complex issue, it is hard to imagine that your Senate is wasting a lot of time. Because in the lower instances, masses of diesel proceedings have been on hold for months until new supreme court guidelines are available. The judges should have deliberated in detail.
