Abgasskandal 3.0 bahnt sich an – Neue Wende durch den EuGH

A possible decision by the European Court of Justice (ECJ) is of such significance that even the Federal Court of Justice (BGH) is postponing its proceedings. Numerous cases brought by the firm Rogert & Ulbrich have been suspended by the courts as a decision by the ECJ is eagerly awaited.

The background: On 2 June 2022, ECJ Advocate General Athanasios Rantos made it clear in a diesel case that consumers are entitled to compensation if their vehicles unauthorized shutdown devices tampering with the exhaust gas purification system. The Advocate General thus aims to protect the interests of vehicle buyers. Purchasers should have a claim for compensation against the manufacturer if an illegal defeat device is installed in the vehicle. According to Rantos, the calculation of the compensation claim should also ensure that the compensation claim corresponds to the damage incurred.

If the ECJ follows the Advocate General's opinion, the mere presence of an inadmissible defeat device will soon be sufficient for a claim for damages and the hurdle for a conviction would be considerably lower than before.

Liability against manufacturers in the event of simple negligence?

The initial case concerns a Mercedes-Benz C 220 CDI, in whose exhaust gas recirculation system the so-called "thermo window" was implemented. The buyer filed a lawsuit for damages before the Ravensburg Regional Court (LG).

This "thermal window" regulates the exhaust gas treatment system depending on the outside temperature. If the temperature drops below the value specified by the manufacturer, the exhaust gas treatment system is deactivated. This leads to an increase in nitrogen oxide (NOx) emissions during road use.

According to the assessment of the Ravensburg Regional Court, the thermal window constitutes an inadmissible defeat device. The question now arises whether a claim for damages based on tortious liability against the vehicle manufacturer can also be considered in cases of simple negligence. Mercedes-Benz does not appear to have acted intentionally. However, to date, the Federal Court of Justice has only affirmed the conviction of the vehicle manufacturer if there was an immoral, intentional damage pursuant to § 826 BGB However, Advocate General Rantos disagrees with this view. In order to protect the interests of individual vehicle purchasers, even negligence should be sufficient grounds for a claim for damages.

In order to consider liability for simple negligence, the Union regulation on EC type-approval, which prohibits defeat devices, would have to aim to protect the interests of individual purchasers as well. The interest of the individual purchaser should therefore be particularly protected if he unknowingly purchases a vehicle with a impermissible shutdown device acquired.

Rogert & Ulbrich recommends

If the ECJ agrees with Rantos' opinion, the automotive industry will likely face another wave of lawsuits. It therefore remains exciting to see how the ECJ will decide. If the Advocate General makes a ruling, it could potentially lead to the recall of every vehicle in the future. The so-called thermal window is installed in virtually every diesel vehicle from all manufacturers, and many manufacturers even publicly admit this. Therefore, initiate the procedure nowto benefit even faster from the pending ECJ decision. We advise you to act quickly and to get advice from us.