Rechtssicherheit für Dieselkäufer: neue Abgasskandal Verfahren

New BGH proceedings in the VW emissions scandal.

In two current proceedings on VW emissions scandal is the Federal Court of Justice (BGH) stayed true to his line. The good news for injured diesel buyers: The VIth Senate has once again emphasized that VW deliberately deceived its customers and owes them compensation. A software update apparently won't change that. Not so good: The highest German civil court has limited the compensation: kilometers driven will be taken into account and there will probably be no tortious interest.

Two cases from the Higher Regional Court (OLG) in Braunschweig were due for appeal before the Federal Court of Justice on July 21. In the first case, the plaintiff had purchased a used VW Passat with around 57,000 km on the clock in 2014 and had driven almost 200,000 kilometers with it. Because he had refused the software update offered by VW, his vehicle was taken out of service by the responsible traffic authority. The lower court had dismissed his claim for damages on the grounds, among other things, that the usage compensation to be credited exceeded the purchase price. For the Passat diesel, the Braunschweig court set an expected total mileage of 250,000 kilometers - and that had since been used up (August 20, 2019, case number 7 U 5/18).

No compensation and no tortious interest

In the oral hearing, the BGH found that Volkswagen had intentionally and immorally harmed the buyer of the VW Passat with the illegal switch-off device installed in it, but otherwise the decision of the Braunschweig Higher Regional Court could not be criticized. The financial damage was offset by the long-term use. The Senate thus maintained its position expressed in the landmark ruling of May 25. It also denied the claim for tortious interest. This represented "unjustified overcompensation" since the car buyer could already claim consideration for the purchase price by using the vehicle (case number VI ZR 354/19).

Claims for damages remain valid despite software update

The second case concerned the claim of the buyer of a VW Tiguan. The Higher Regional Court of Braunschweig had rejected his claim for damages because the damage had been remedied by a free software update. In addition, the plaintiff had not been able to provide a convincing explanation of which person at Volkswagen had caused him damage (20.08.2019, case number 7 U 5/18). The Federal Court of Justice did not agree with this view. For the Karlsruhe judges, a software update obviously does not change the immoral damage and Volkswagen's responsibility. The case will now probably be referred back to Braunschweig (case number VI ZR 367/19).

"There are still no verdicts in either case, but the statements made by the Karlsruhe judges bring more legal certainty. The Senate has fundamentally confirmed its groundbreaking decision from May: Volkswagen has intentionally and immorally harmed diesel buyers - and software updates will not change that.

We consider it critical that the court has taken into account compensation for use. This gives Volkswagen carte blanche to drag out proceedings at the expense of the customers who have suffered damage - and thus profits once again from the emissions fraud. However, it was already to be expected after the ruling in May that kilometers driven would be deducted from the compensation.

In essence, the BGH has confirmed what we had already seen with the first ruling against Volkswagen before the Hildesheim Regional Court and achieved this year with the VW settlement. We are now looking forward to the final verdicts - and to the next BGH proceedings on July 28th. Then the important question of the statute of limitations for claims for damages will be discussed. In any case, we will remain true to our line and help injured diesel buyers to get their rights."

Partner Dr. Marco Rogert