Milliarden-Zahlungen im Diesel-Abgasskandal in den USA

Daimler refuses to settle in Germany, but victims have a good chance of reversing the settlement.

In the USA, Daimler has emissions scandal billion-dollar settlements with authorities and consumers. What does this mean for Mercedes buyers in Germany who have been harmed? In this country, the company has so far denied any responsibility and is trying to prevent higher court rulings by any means possible. Is the turnaround now coming?

Over 2.2 billion US dollars, the equivalent of about 1.9 billion euros – that is how much Daimlerr in the USA Comparisons in the diesel emissions scandal 1.5 billion US dollars (1.26 billion euros) of this is accounted for by agreements with the US Environmental Protection Agency (EPA), the Environmental Division of the Department of Justice, the Customs and Border Protection Agency and Californian authorities. 700 million US dollars (around 590 million euros) will go to consumers who joined a class action lawsuit. In addition, there is a three-digit million amount for court costs and attorney fees.

No offer for affected customers in Germany

In total, around 250,000 Mercedes vehicles in the United States are affected by illegal emissions manipulation. If all the courts and institutions involved agree to the settlement, the Stuttgart-based carmaker will get off relatively lightly – at least significantly cheaper than VolkswagenThe competition paid around 14.7 billion dollars (around 12,642.4 billion euros) for its settlement in the USA. Including all the fines and damages, the costs of the emissions fraud for the Wolfsburg-based company in the USA alone amounted to 23 billion euros. Daimler has not yet reached the end of the story either, as criminal proceedings against the company are still being heard by a US jury, and the settlements are by no means the end of the matter.

Almost two billion euros in settlement payments – that sounds like an admission of guilt in diesel emissions scandalBut whoever hopes that Daimler also approaches affected customers in Germany and makes them a similarly generous offer is mistaken. Because although hardly anyone doubts that the emissions control system in numerous Mercedes diesels was also manipulated, the company claims innocence here.

Recalls for 1.5 million Mercedes vehicles – Now also S-Class affected

The fact that Daimler cheated is demonstrated not least by the nine compulsory recalls that the Federal Motor Transport Authority (KBA) has now ordered due to illegal switch-off devices. More than 1.5 million Mercedes vehicles are affected, over 610,000 of them in Germany. Fraudulent software can be found in almost all of the group's car models. A thermal window has even been detected in the group's "flagships". In any case, the KBA has ordered a recall of a total of more than 6,000 vehicles of the S 350 BlueTEC, S 350 d, S 350 TEC 4MATIC and S 350 d 4MATIC models. Around 1,260 Mercedes are affected in Germany.

The 6-cylinder common rail diesel engine OM 642 is used in these and other premium models. Illegal manipulation software is also active in the Mercedes engines OM 622, OM 626 and OM 651. Installing software updates obviously does not solve the problem with increased nitrogen emissions. On the contrary: According to a report by the ZDF magazine “Frontal 21According to the report, some vehicles emit even more NOx after the update.

Whether it is the thermal window, coolant setpoint control or Bit 15: the Stuttgart-based company insists that such manipulations are legal because they serve to protect the engine and are therefore not permitted by the Regulation (EC) No 715/2007, Article 5, paragraph 2 Daimler Board Member and Chief Legal Officer Renata Jungo Brüngger recently stressed in the Neue Zürcher Zeitung.

More and more consumer-friendly judgments in Mercedes cases

It is more than questionable whether Daimler will get away with this. The Attorney General at the European Court of Justice (ECJ) has taken a clear position on this issue: defeat devices are fundamentally prohibited if they lead to increased emissions in road traffic. Exceptions to this are only permitted within very narrow limits. A corresponding decision from the highest European court is widely expected.

Thousands of cases are pending against Daimler in courts in Germany. The Swabians are leaving no stone unturned to avoid judgments. Information about the engines and how the defeat devices work is kept under wraps, as are recall notices from the KBA. In court, the company's lawyers prefer to submit redacted documents and refer to trade secrets. Nevertheless, more and more courts are ruling in favor of consumers in Mercedes cases, for example the regional courts. Heilbronn, Bonn and most recently the Stuttgart Regional Court in three cases.

Stuttgart Higher Regional Court increases pressure on Daimler

The company has so far been able to avert consumer-friendly decisions by higher regional courts (OLG) by offering individual settlements to the plaintiffs. But now the Stuttgart Higher Regional Court is putting pressure on the company. The court has combined several proceedings against Daimler and set up a special senate for these cases, which has already clearly sided with the aggrieved Mercedes buyers.

As the Federal Court of Justice (BGH) (28.01.2020, Az. VIII ZR 57/19), the Stuttgart Senate also stated in a decision It is clear that the company must provide information on how the defeat devices work as part of its secondary burden of proof. In particular, it must disclose information on the approval procedures and explain why it considers the manipulation to be legal and necessary. If the company continues to submit redacted documents, the Senate intends to interpret this to Daimler's disadvantage. In addition, the court indicated in its preliminary legal opinion that it follows the Attorney General at the ECJ on the subject of "exceptions to the ban on defeat devices".

"For a long time it looked as if Daimler was successful with its cover-up tactics. But after the request from the ECJ Attorney General and the decisions of the Federal Court of Justice and the Stuttgart Higher Regional Court, the company can no longer get away with it. Daimler must now lay its cards on the table and take responsibility for its emissions tricks. The settlement from the USA will further accelerate the consumer-friendly trend in case law. We advise all Daimler buyers who have suffered damage to now consult a competent lawyer and assert their claims for damages. The chance of getting justice has never been greater than it is now."

Partner Dr. Marco Rogert