BGH verhandelt vier neue Verfahren im Diesel-Abgasskandal

BGH decides on tortious interest, compensation for use and statute of limitations.

The processing of the diesel emissions scandal is moving up a gear. Following its consumer-friendly landmark ruling in May, the 6th Civil Chamber of the Federal Court of Justice (BGH) will be dealing with the consequences of VW's emissions manipulation at four further hearings on July 21 and July 28. The hearings will cover controversial issues such as compensation for damages after refusing a software update, tortious interest, compensation for use, and the question of the statute of limitations for claims made by injured diesel buyers.

Two cases from the Higher Regional Court of Braunschweig to the Federal Court of Justice

The Regional Court and the Higher Regional Court of Braunschweig are in VW emissions scandal has not yet attracted attention with consumer-friendly rulings, although the Braunschweig Regional Court recently announced that it was abandoning its pro-VW stance. Two injured VW customers were not discouraged by the rejection of their claims for damages against the car company by the two courts. Their cases will now be appealed to the 6th Civil Senate of the Federal Court of Justice on July 21.

Both plaintiffs base their claims against Volkswagen on the installation of impermissible defeat devices. In one case, the plaintiff had a software update offered by VW installed (case number VI ZR 367/19). His claim was dismissed on the grounds that the defeat device had already been removed by the update before the claim was received. In addition, the plaintiff had not conclusively explained which specific person at VW had intentionally and immorally harmed him (August 13, 2019, case number 7 U 352/18).

The other plaintiff had refused the update, whereupon he was prohibited from operating the vehicle (case number VI ZR 354/19). The Higher Regional Court of Braunschweig rejected his claim for damages on the grounds that the elements of fraud had not been met. In addition, the compensation for use now outweighs the purchase price (20.08.2019, case number 7 U 5/18).

Purchase after knowledge: When does the limitation period in the emissions scandal begin?

When could buyers of VW diesels have known about the illegal emissions manipulation? The answer to this highly controversial question will determine when the claims of injured VW customers expire – an issue that affects tens of thousands of car buyers. A decision by the Supreme Court on this is still pending. Perhaps it will come on July 28. Then the Federal Court of Justice will deal with the Claims for damages from a used car buyer who purchased his diesel in August 2016, i.e. almost a year after the emissions manipulation became known (case number VI ZR 5/20). His claims for compensation were rejected by both lower courts (District Court of Trier, May 3, 2019, case number 5 O 686/18, Higher Regional Court of Koblenz, December 2, 2019, case number 12 U 804/19) because "the plaintiff did not substantiate why, despite the extensive media coverage, he should have been unaware that the vehicle was equipped with the inadmissible switching logic."

However, the Koblenz Higher Regional Court ruled in favour of a diesel buyer who had purchased his VW in January 2016 and awarded him damages for intentionally causing immoral damage (05.06.2020, case number 8 U 1295/19). The reasoning: an ad hoc announcement published by Volkswagen in September 2015 did not indicate that the engine control software had been deliberately manipulated. Moreover, Volkswagen's immoral behaviour had continued at the time of the vehicle purchase. The Higher Regional Courts of Cologne, Oldenburg and Hamm as well as the Paderborn Regional Court and most recently Frankfurt am Main. The Marburg District Court even takes the view that the claim for damages by injured parties should only expire after 10 years.

Are there claims for tortious interest and compensation for use?

The second BGH case on 28 July concerns the claim for tortious interest (Ref. VI ZR 397/19). The Oldenburg Regional Court had already ordered Volkswagen to reimburse the purchase price of a VW Golf VI 1.6 TDI less compensation for use due to intentional immoral damage (January 11, 2019, Ref. 3 O 1275/18). The plaintiff had appealed against the deduction of compensation for use and also demanded payment of tort interest. The Oldenburg Higher Regional Court had awarded her this, but the judges confirmed the decision of the lower court regarding compensation for use (October 2, 2019, Ref. 5 U 47/19). Both the plaintiff and Volkswagen have appealed against this judgment.

"In the past, courts have assessed the claim to tortious interest very differently. Most regional courts have generally awarded this interest to injured car buyers from the time of purchase of the vehicle, as have some higher regional courts, such as Oldenburg, Cologne and Brandenburg. We assume that the Federal Court of Justice will confirm this consumer-friendly legal opinion. On the issue of limitation and in the appeal hearings on June 21, we firmly expect decisions that encourage injured diesel buyers to assert their rights. In any case, the rulings of the Federal Court of Justice will have far-reaching effects on the proceedings in the emissions scandal. Then the other diesel manufacturers will finally have to face up to their responsibility."

Partner Dr. Marco Rogert

Compensation for non-use: will the European Court of Justice ultimately decide?

The question of compensation for use could also become exciting again. Although the Federal Court of Justice already ruled in the VW case in May that compensation for use for the kilometers already driven must be deducted from the damages, there are also signs of a trend reversal in case law here. Several regional courts have awarded car buyers compensation without deducting compensation for use. The Frankfurt am Main Regional Court explicitly justified this with Volkswagen's "particularly reprehensible conduct" (April 30, 2020, case number 2-27 O 2/19).

A judge at the Erfurt Regional Court gave a similar reasoning for his decision, to have the VW ruling of the BGH of May 25 (case number VI ZR 252/19) reviewed by the European Court of Justice for conformity with European law (June 15, 2020, case number 8 O 1045/18): A usage compensation for kilometers driven means that "the longer the legal dispute drags on, the less sanctions VW has to fear. This could create a strong incentive to commit the infringement nonetheless and to unduly delay the fulfillment of the claim." Against this background, it will be extremely exciting to see how the BGH will decide on this issue on June 28.