Thursday, September 16, 2021
Car manufacturers breathe easy
BGH rejects diesel lawsuits against VW and Daimler
The diesel scandal is still preoccupying the highest German civil judges. In two new proceedings, the plaintiff consumers received nothing. In one case, the court made a distinction between buying and leasing. In a second case it did not see any fraud.
Diesel plaintiffs at the Federal Court of Justice (BGH) got a damper on two issues. The highest civil judge in Karlsruhe ruled that leasing customers with a car affected by the VW emissions scandal usually do not get any money back from the installments (Az. VII ZR 192/20). In addition, several claims for damages against Daimler because of the so-called thermal window in Mercedes diesels were dismissed (Az. VII ZR 190/20 et al.).
When leasing the car, the customer does not buy the car, but pays monthly installments for its use over an agreed period of time, like a rental. Here the judges see an important difference to the purchase: While a purchased car may be driven until it is ready for scrap, the use of the vehicle in the case of leasing has “its own, fundamentally time-related value”.
The Senate therefore applies the following principle: Anyone who was able to use their diesel “without significant restrictions” for the entire leasing period has no claim to compensation. The customer had an advantage and paid installments for it, both of which weighed off. According to the judgment, an exception would only be conceivable if it was firmly agreed in advance that the customer would take over the car after the leasing period. But that was not the case here. Volkswagen welcomed the ruling that the BGH had confirmed the prevailing view of the higher court rulings. The decision affects a four-digit number of vehicles.
Judges lack evidence of involvement by Audi
The plaintiff, a man from the Ostalb district in Baden-Württemberg, had leased his Audi with the scandalous EA189 engine for four years and then bought it. Besides the leasing installments, he wanted the purchase price back. According to the Karlsruhe case law on the VW emissions scandal, that would actually also be possible. Those affected can return their car, but do not get the full purchase price back. A usage fee is deducted for the kilometers driven.
The problem here: The man had not sued the parent company VW, but the subsidiary Audi. And the EA189 engine with the illegal exhaust technology was also used at Audi, but developed at VW. The BGH has so far lacked sufficient evidence that those responsible for Audi were entangled in the customer deception. However, the plaintiff is given the opportunity to present more specific information at the Stuttgart Higher Regional Court (OLG).
Volkswagen had secretly used fraudulent software in millions of diesel cars, which in government tests disguised the fact that too many pollutants were actually emitted. As of Thursday, four former managers and engineers have had to answer in criminal proceedings before the Braunschweig Regional Court.
Daimler “thermal windows” cannot be compared with VW
In the Daimler case, thousands of plaintiffs accuse the Stuttgart car maker of having also used an illegal shutdown device in diesel cars – the “thermal window”. The technology that was also used as standard by other manufacturers comes into play when it comes to exhaust gas cleaning. To ensure that vehicles emit less toxic nitrogen oxides, some of the exhaust gases are burned directly in the engine. If the outside temperature is cooler, this mechanism is automatically throttled. The manufacturers say this is necessary to protect the engine.
The BGH had already dealt with the thermal window several times and thinks that the comparison with VW is limping. The VW fraud software switched to a different mode on the test bench. The thermal window, on the other hand, always works the same – whether on the road or in a test.
This time it was another Senate’s turn, but it reiterated earlier decisions, according to which Daimler cannot be accused of fraudulent intent just because of the use of the technology. To do this, those responsible would have to be able to prove that they deliberately wanted to deceive the authorities. Concrete evidence has not yet been put forward, not even by the four car buyers whose lawsuits have now been dismissed.
In the lower court at the Higher Regional Court in Koblenz, they claimed that Daimler had tailored the mechanism exactly to the test conditions in order to be able to comply with the limit values. The BGH judges saw no evidence for this. Daimler welcomed the decision. You have “a leading character for thousands of legal proceedings in Germany”. The BGH lawyer for the plaintiffs, Siegfried Mennemeyer, criticized that consumers were being asked for information that they could not have at all. It is time to get an expert opinion. “There has to be some light in the dark.”
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