Diesel judgment of the BGH: U-turn in damages – economy

Almost eight years after the diesel emissions scandal became known, the Federal Court of Justice (BGH) has now significantly lowered the hurdles for claims for damages. In connection with the so-called thermal windows, negligent action by the car manufacturer is already sufficient for compensation, the Karlsruhe court ruled this Monday in a test case on the lawsuits of three car buyers against Mercedes, Audi and VW.

The Federal Court of Justice is thus making a U-turn in its very restrictive case law in the diesel cases. So far, he has only granted buyers compensation in the event of “deliberate and immoral damage” – for example, if the engine was manipulated by fraudulent software that could recognize the test bench operation and specifically reduce pollutant emissions. So far, the courts have only assumed this for the VW EA189 engine, but not for the thermal windows installed in many models. Because such thermal windows, which exist in many variants, usually serve – at least also – to protect the engine. At certain outside temperatures, they switch off the exhaust gas cleaning system.

The trigger for the swing was a judgment by the European Court of Justice (ECJ) in spring, which urgently warned “that national legislation must not make it practically impossible or excessively difficult to obtain appropriate compensation for the damage suffered by the buyer”. The legally decisive step of the ECJ: It classified the EU rules on type approval as a “protective law” in favor of the buyer – and not as a merely generally binding rule. In the event of a violation of such protective laws, the negligent action of the manufacturer is sufficient for a claim for damages under German law – which makes it much easier for the buyer’s lawyers to enforce damages than under the previously applicable provisions of the BGH, which insisted on intent.

The claim for damages is now easier to substantiate, but this does not create an automatism. In view of the large number of technical variants, the main argument before the lower courts is whether the respective thermal window is really an illegal defeat device or not. The ECJ had already given a consumer-friendly line here last year.

“Basically” thermal windows are to be classified as illegal defeat devices. This applies in particular if they already turn down the exhaust gas recirculation at temperatures below 15 degrees Celsius, which is common in Europe. The fact that add-on parts such as the exhaust gas recirculation valve and the diesel particle filter are protected does not change this. It could only be permitted if the thermal window was used exclusively to avoid serious engine damage or the risk of accidents.

After the Karlsruhe judgment, many buyers can now hope for compensation. According to the law firm Goldenstein, around 100,000 lawsuits against all manufacturers are pending before the German courts, 2,100 of them before the BGH. However, the amount of compensation is likely to be lower than expected. According to the BGH, there is a claim for damages of at least five and at most 15 percent of the purchase price. However, the benefits of use, i.e. the kilometers driven, can be counted.