As one of the leading law firms in the so-called emissions scandal complex - with more than 50,000 cases - we were the first law firm to record a legal victory against Volkswagen AG. It has been controversial for some time whether - and under what conditions - temperature-controlled switch-off devices in vehicles with combustion engines are inadmissible. With today's ruling, the ECJ has provided clarity in the final instance and strengthened the rights of consumers in the long term.
Liability against manufacturers for simple negligence
"In the diesel emissions scandal, the European Court of Justice (ECJ) caused a stir today, Tuesday, March 21, 2023, with a leading decision (C-100/21) on the third-party protective effect of the regulations in the European Directive 2007/46/EC and will thus initiate a turnaround. The ECJ finds that the Union law regulations on the registration of motor vehicles in road traffic protect third parties insofar as they also concern the protection of the individual interests of citizens of the European Union. This is so explosive because under German law, the claim arising from the unlawful violation of a protective law was - obviously wrongly - rejected by the German courts (Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007). This provision - unlike other grounds for claims - gives the injured party a claim for damages if a protected legal interest is negligently violated. Accordingly, there is no need to prove that the defendant acted intentionally. In the "diesel proceedings", the defendant regularly claims that it could have relied on statements from the Federal Motor Transport Authority, which is why it cannot be accused of intent. In any case, in my view, there is an accusation of negligence, because the manufacturer itself is obliged to comply with the requirements of European law. Nowadays, it has entire departments that deal with compliance and it could and should have recognized that its own actions violated the goals and requirements from Brussels," explains attorney Dr. Marco Rogert.
The Federal Court of Justice (BGH) assessed the question of the general illegality of thermal windows differently some time ago. However, it has recently suspended several ongoing proceedings on the grounds that it wants to wait for a decision from the ECJ in order to "to provide the courts of first instance and the courts of appeal dealing with diesel cases with supreme judicial guidance as soon as possible following a decision of the Court of Justice." (Press release dated July 1, 2022, ref. VIa ZR 335/21).
Simplified enforcement of claims ffor plaintiffs
"The Federal Court of Justice has therefore now received the binding instructions to apply the basis of claim under Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007 in the exhaust gas scandal complex in addition to the previous basis of claim based on the allegation of intent and to assess temperature-controlled switch-off devices extremely critically. This makes it easier for the claimants to enforce their claims. It is also not to be expected that the Federal Court of Justice will ignore this decision, since by postponing the announcement dates in the case in question it has indicated that it considers the ECJ decision to be binding and preemptive in such cases," says Dr. Rogert, assessing the scope of the RuGH ruling.
In the overall view of these rulings, this means that, in any case, if the temperature-controlled switch-off device results in the exhaust gas purification system being switched off for a large part of the year, there is generally a right to rescission. This applies regardless of the manufacturer. "Due to the purpose of the switch-off device, which is to be used in reality, this requirement should generally be met. The complex programming of a switch-off device that only kicks in at outside temperatures below -20 and above +70 degrees Celsius would be pointless," says the R&U legal expert.
Higher chance of success ffor injured consumers
"For owners of vehicles with combustion engines that are no more than ten years old, this decision means, in my opinion, that enforcing claims for damages is possible with a significantly higher chance of success than before this decision," concludes Dr. Rogert.
In the Court's rulings in cases C-128/20 | GSMB Invest, C-134/20 | Volkswagen and C-145/20 | Porsche Inter Auto and Volkswagen, the ECJ had already ruled that the temperature-controlled defeat devices used in millions of diesel vehicles were illegal because they violated the relevant EU regulation. "The decisions at the time are particularly explosive because, according to media reports, such defeat devices were also used in vehicles with petrol engines, thus turning the diesel emissions scandal into a combustion engine emissions scandal," explains Dr. Marco Rogert.
The Federal Court of Justice (BGH) assessed the question of the general illegality of thermal windows differently some time ago. However, it has recently suspended several ongoing proceedings on the grounds that it wants to wait for a decision from the ECJ in order to "to provide the courts of first instance and the courts of appeal dealing with diesel cases with supreme judicial guidance as soon as possible following a decision of the Court of Justice." (Press release dated July 1, 2022, ref. VIa ZR 335/21).
ECJ decision is binding for the Federal Court of Justice
Attorney Rogert: "The Federal Court of Justice has therefore now received the binding instructions to apply the basis of claim under Section 823 Paragraph 2 of the German Civil Code in conjunction with the European Directive 2007/46/EC and Regulation No. 715/2007 in the exhaust gas scandal complex in addition to the previous basis of claim based on the allegation of intent and to assess temperature-controlled switch-off devices extremely critically. This makes it easier for the claimants to enforce their claims. It is also not to be expected that the Federal Court of Justice will ignore this decision, since by postponing the announcement dates in the case in question it has indicated that it considers the ECJ decision to be binding and preemptive in such cases."
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