Wednesday 07 July 2021
Model case in the diesel dispute
Consumer advocates are suing Daimler
Similar to Volkswagen, the Federation of German Consumer Organizations is launching a test case against the car manufacturer Daimler. The court should find that the Stuttgart have deliberately manipulated exhaust gas values. A success like against VW is anything but certain.
Consumer advocates want to obtain compensation for Mercedes customers affected by the diesel scandal. The Federal Association of Consumers (VZBV) has therefore submitted a model declaratory action against the car maker Daimler before the Stuttgart Higher Regional Court, said board member Klaus Müller. The consumer advocates accuse Daimler of deliberately manipulating the emissions values.
According to the Federal Motor Transport Authority (KBA), the Stuttgart-based company has used an inadmissible exhaust technology in hundreds of thousands of diesel vehicles under their Mercedes-Benz brand. The automaker therefore had to recall cars en masse. However, Daimler considers the functions to be permissible.
“Despite official recalls, Daimler AG continues to deny that it has deliberately manipulated the emissions levels of its vehicles,” said Müller. The court should now determine this and give consumers legal clarity. By installing defeat devices, manufacturers can ensure that cars comply with the permissible limit values for exhaust gases during type approval. In road traffic, however, they sometimes significantly exceed this limit.
Daimler stated in an initial editorial that the model declaratory action had not yet been served. “However, we consider the claims asserted against us in diesel lawsuits to be unfounded and will continue to defend ourselves against them – also in the context of a possible model declaratory action,” added the Stuttgart group.
Easier route to compensation
According to VZBV, around 254,000 Daimler vehicles in Germany are affected by the official recalls. In its model lawsuit, however, the association focuses on a certain type of engine (OM651). This means that the owners of almost 50,000 Mercedes GLC and GLK models could join in, which could be shut down without a software update.
The main purpose of the model declaratory action is to facilitate the way to compensation. Because the cars were recalled in 2018, the cases are threatened with statute of limitations at the end of the year. Daimler customers can prevent that if they join the lawsuit. The vzbv had filed a similar model declaratory action against Volkswagen in 2018. At the beginning of 2020, consumer advocates and Wolfsburg agreed on a settlement that around 245,000 customers accepted. VW paid them between 1350 and 6250 euros, depending on the age and type of vehicle.
Shortly afterwards, the Federal Court of Justice ruled that VW had systematically deceived its customers: If they had known that diesel cars with a certain engine emitted far more pollutants than could be measured on the test bench, they would probably have opted for another vehicle. The group is therefore obliged to pay damages. In most cases, plaintiffs were given the right to return their car, but had to credit their use. Instead, many agreed with VW on a one-off payment and kept the car.
“Thermo window” alone is not immoral
In the case of Daimler, there have been a number of individual claims for damages in the past – with different outcomes. The success depends on “how those affected describe their case in court,” say the consumer advocates. There is still no legal clarity as to whether Daimler acted deliberately or immorally. Therefore, the consumer advocates want to force more clarity with the model lawsuit.
Some plaintiffs see the so-called “thermal window”, which was used as standard by Daimler and other manufacturers, as a point of attack. It is part of the engine management system and reduces emission control when the outside temperature is cooler. Plaintiffs see it – as with VW – an impermissible defeat device. In the case of Daimler, however, things are more complicated. At the end of June, the Federal Court of Justice in Karlsruhe announced in connection with such a lawsuit that the use of this technology alone should not be classified as immoral.
The fact that the highest civil judges judge the case in a more differentiated manner than the VW case is nothing new. You had already spoken out in January when the scheduled negotiations never came to fruition – the plaintiffs always backed down. At that time, the Senate had announced that it had not yet seen any fraudulent conduct at Daimler. The thermal window always works the same, whether on the street or in a test. VW, on the other hand, had secretly used software in millions of diesel cars that concealed the fact that too many pollutants were being emitted on the test bench.
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