The ruling is not yet final, as Mercedes-Benz has announced that it will appeal the decision. Affected consumers can successfully assert their claims for damages if the ruling is upheld by the Federal Court of Justice in Karlsruhe.

background the lawsuit

The consumer protection agency's lawsuit focuses on vehicles with a specific engine type that were manufactured between 2012 and 2016 and were later affected by a recall notice from the Federal Motor Transport Authority (KBA).

The model declaratory action was filed in 2021, and the proceedings began in July 2022. 2,848 consumers joined the model declaratory action. However, the proceedings experienced several delays due to the pending outcome of important decisions from the European Court of Justice (ECJ) and the Federal Court of Justice (BGH). These decisions were crucial for the course and structure of the proceedings, which is why the proceedings were postponed several times pending the outcome of these supreme court rulings.

ECJ sensational ruling in favor of consumers

The European Court of Justice (ECJ) ruled in favor of consumer rights in its judgment (C-100/21) of March 21, 2023. According to the ruling, consumers can assert claims for damages even if the manufacturer acted only negligently and not intentionally. Furthermore, the ECJ ruled that the thermal window is unlawful.

BGH follows the consumer-friendly case law of the ECJ

In its judgment of June 26, 2023 (VIa ZR 335/21), the Federal Court of Justice (BGH) followed the ECJ's legal opinion. The BGH confirms that consumers are entitled to compensation even without proof of intent or immorality.

Immorality or negligence?

If a court finds the vehicle to be immoral, car buyers have the option of returning the vehicle to the manufacturer. In this case, they will receive a refund of the purchase price less the vehicle's previous use.

In cases of negligent action on the part of the manufacturer, the difference in damages applies: Under certain conditions, buyers can receive up to 15 percent of the purchase price back without having to return their vehicle. This regulation allows buyers to receive financial compensation for the damage they suffered without having to abandon the vehicle.

Partial success but no direct award of damages

With its recent ruling, the Stuttgart Higher Regional Court confirmed the view of the Federal Motor Transport Authority (KBA) that illegal defeat devices are installed in the affected Euro 6 and Euro 5 models. However, the Stuttgart court also dismissed some parts of the lawsuit. It found that the accused employees knowingly accepted that the vehicles were equipped with illegal systems. However, the court could not establish any intentional action on the part of the automaker, as alleged by the German Consumer Organization (vzbv). Likewise, the court did not support the consumer advocates' claim that members of the Mercedes-Benz board of directors had ordered or approved the use of the identified illegal defeat devices.

Furthermore, the Stuttgart court emphasized that its ruling does not directly order Mercedes to pay specific damages. Rather, consumers' claims must be asserted in individual lawsuits. The chances of success for individual lawsuits involving the affected vehicles have increased significantly as a result of the Higher Regional Court's ruling.

Rogert & Ulbrich recommends

We will be happy to check for you free of charge whether your Mercedes model is affected by the diesel emissions scandal and calculate the possible amount of your claim for damages. You can contact us by phone, and our advice is completely non-binding. We are happy to assist you in this complex legal area and answer your questions.

Der Beitrag Musterfeststellungsklage gegen Mercedes-Benz: Verbraucherschützer erzielen Teilerfolg erschien zuerst auf R&U.

Mercedes-Benz diesel vehicles have been subject to mandatory recalls since 2018 on the instructions of the Federal Motor Transport Authority (KBA). New recall notices have been issued for the Mercedes Vito and Viano models since September 2023 (recall code NC2II6515R / 0797185). Now AUDI is also facing the next wave of recalls for the 3-liter/six-cylinder VTDi engines.

Recall letters often entitle you to compensation

Mandatory recalls as part of the diesel emissions scandal are forcing software updates to fix illegal emissions control switch-off devices. Millions of diesel vehicles are affected, and there are significant claims for damages from deceived customers.

What you should do now

If you have received a letter from the KBA or the vehicle manufacturer informing you that your vehicle requires a software update, contact the Rogert & Ulbrich law firm immediately, which specializes in the diesel emissions scandal. During the free initial telephone consultation, you will immediately find out how much compensation you are entitled to. Take your chance and benefit from the many years of expertise of our specialized lawyers to secure your compensation. 

Please note that you should not install the software update initially so that your claim for compensation is not voided.

AUDI – group-wide manipulation of vehicles

Vehicles from all group brands, including VW, AUDI, Skoda, Seat and Porsche, are affected by the emissions scandal and use a variety of engines. This includes the large-engined V6 engines that were installed in AUDI vehicles from the A and Q series, among others. Now the KBA is threatening further mandatory recalls for these 3-liter engines.

Mercedes Dieselgate 2.0

The Mercedes emissions scandal affects numerous diesel vehicles across Europe, including models of the A, B, C, E, G and S classes as well as off-road vehicles. Transporters such as the Sprinter and vans such as the Vito and Viano are also affected.

Since September 2023, the Federal Motor Transport Authority (KBA) has ordered new mandatory recalls for the Mercedes van models Viano and Vito. The recall code is NC2II6515R / 0797185.

ECJ & BGH strengthen rights of millions of affected people

In July 2022, the European Court of Justice (ECJ) ruled that temperature-controlled defeat devices (often popularly called "thermo windows") are illegal if they result in the exhaust gas purification not working properly for more than half of the year. In March 2023, the ECJ also ruled that buyers of vehicles with illegal defeat devices can in principle receive compensation even if the manufacturers did not act immorally but negligently violated the EU Vehicle Registration Regulation. With the groundbreaking ruling, the ECJ forced a U-turn by the Federal Court of Justice (case number: C-100/21). Consumers are therefore entitled to compensation even if the manufacturers of diesel engines acted negligently. Previously, it was necessary to prove that the manufacturers acted intentionally. This is no longer necessary and simplifies the proof.

Get compensation for the difference and keep the car

The European case law of the ECJ forced the Federal Court of Justice (BGH) to make a fundamental change in its case law in the diesel emissions scandal on June 26, 2023. The BGH has introduced so-called differential compensation, which makes it easier than ever for consumers to claim compensation in the emissions scandal. Drivers of a diesel vehicle with a "thermal window" are entitled to compensation of 5 to 15 percent of the purchase price in accordance with Section 823 (2) of the German Civil Code (BGB). In contrast to reversing the purchase contract and returning the manipulated vehicle to the manufacturer, in the case of differential compensation, vehicle owners can keep their car and receive financial compensation for the loss in value of their vehicle.

Who bears the costs of the recall?

The manufacturers cover the repair costs as part of recall campaigns, but there is no entitlement to reimbursement for the time invested or a replacement vehicle. The software updates often lead to increased wear and tear on the engine. Unless you assert your claims, these damages will not be compensated.

Who informs the vehicle owner in the event of a recall?

Vehicle owners are informed by post about upcoming recalls, either by the manufacturer or the KBA.

Which shutdown devices are used?

Various shutdown devices, such as the "thermal window", the coolant target temperature control (KSR) and SCR catalysts modified for AdBlue injection are often used in manipulated diesel vehicles. These shutdown devices often lead to problems with exhaust gas purification and result in violations of applicable emissions standards.

What are “thermo windows”?

These shutdown devices mean that, for example, exhaust gas purification is restricted or switched off at temperatures below 15 degrees, which are typical in Germany.

How does the coolant target temperature control (KSR)?

After a long period of downtime, the coolant target temperature control (KSR) ensures that the coolant is heated more slowly and thus fewer pollutants are produced. However, the KSR solution works almost exclusively on the test bench. It is not an industry standard and was kept secret from the Federal Motor Transport Authority by Mercedes. It is estimated that around 3 million Mercedes vehicles are equipped with the KSR software. 

How does the SCR catalyst work?

The SCR catalytic converter (Selective Catalytic Reduction) treats exhaust gases with the help of AdBlue and converts toxic nitrogen oxides (NOx) into water vapor and nitrogen. However, this catalytic converter has an illegal switch-off device to reduce AdBlue consumption. Different operating strategies for the SCR catalytic converter are legally illegal, which differentiate between the test bench and the exhaust gas measurement carried out there and normal road use. In reality, the exhaust gas recirculation rate is throttled and the vehicle's AdBlue dosage is reduced. This leads to the legal limits being exceeded in road use.

Rogert & Ulbrich recommends

It's worth being quick. The fewer kilometers you have driven and the sooner the hearing, the more you will get paid back. This also means you avoid the risk of your claims becoming time-barred. Don't miss out and act now. As leading lawyers in the emissions scandal, we are at your side with all questions about your claim for compensation and will examine your individual claims. Find out how high your claims are and how you can assert your claims for compensation in just a few seconds. We advise you free of charge and without obligation.

Der Beitrag Abgasskandal: KBA versendet seit September 2023 neue verpflichtende Rückrufbescheide wegen illegaler Abschalteinrichtungen erschien zuerst auf R&U.

Engine OM642: KBA criticizes 3 defeat devices

One of the defeat devices limits the function of the emission control system to a specific temperature range, known as the "thermal window," which has been declared illegal by the European Court of Justice. Another defeat device causes different amounts of the urea solution AdBlue to be injected into the emission control system depending on specific driving conditions. A third defeat device makes the effectiveness of the SCR catalyst dependent on the temperature of the intake air during emission control.

E-Class sedans particularly affected

This specific case involves a Mercedes E-Class 350 Blue TEC sedan with a Euro 6 diesel engine. According to the German Federal Motor Transport Authority (KBA), the model has been undergoing a voluntary software update program by the manufacturer since 2019. Vehicle manufacturers have offered voluntary service programs in the past, but these became mandatory after some time.

The responsible authority can then enforce the compulsory decommissioning of your vehicle. If this is not done, there is a risk, in the worst case, that the affected vehicles will be banned from operation and decommissioned.

The exact number of affected vehicles with the OM642 engine type is still unclear. However, the E-Class is one of the group's best-selling models in Germany. The automaker was supposed to notify the KBA of "suitable remedial measures" by July 27. However, the company has requested an extension.

The Rogert & Ulbrich law firm, considered pioneers in the emissions scandal, knows that the OM642 engine is not only installed in the E-Class. Your Mercedes could therefore also be affected.

BGH strengthens consumer rights

According to the Federal Court of Justice's ruling from June 2023, there are good prospects for compensation, as all manufacturers can already be held liable for the installation of illegal "thermal windows", even if there is only negligence and no intent. (File number VIa ZR 1031/22).

Financial disaster for Mercedes-Benz

The diesel scandal has already cost the automaker dearly. In 2019, the Stuttgart public prosecutor's office imposed a record fine of €870 million. Out-of-court settlements in the US cost approximately €1.3 billion. In addition, €590 million was paid in the US and €175 million in Canada to settle class action lawsuits.

Therefore, according to its own annual reports, Mercedes-Benz Group AG, formerly Daimler AG, is making massive provisions for liability and litigation risks as well as regulatory proceedings:

• €2.1 billion in 2018 (Annual Report, page 88)
• €4.9 billion in 2019 (Annual Report, page 88)
• €4.6 billion in 2020 (Annual Report, page 67)
• €2.6 billion in 2021 (Annual Report, page 83)
• €2.8 billion in 2022 (Annual Report, page 77)

Publication of all exhaust gas measurements required

The law firm Rogert & Ulbrich joins the appeal of the German Environmental Aid (DUH) and demands that the Federal Ministry of Transport publish all exhaust gas measurements and documents on “officially identified defeat devices” in order to help the approximately 10 million owners of fraudulent diesel vehicles.

Publication of all exhaust gas measurements required

On September 21, 2023, the model declaratory action against Mercedes-Benz Group AG will enter the next round. The German Consumer Organization (vzbv) is suing on behalf of thousands of injured Mercedes-Benz owners who own a model with the OM651 engine type.

Rogert & Ulbrich recommends

We will check for you free of charge whether your Mercedes model is affected by the diesel emissions scandal and calculate the amount of your compensation claim. Contact us by phone without obligation. We advise you free of charge and without obligation.

Der Beitrag Dieselskandal: Stilllegung von Mercedes-Benz wegen illegaler Manipulation der Abgassoftware möglich erschien zuerst auf R&U.

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."

Rogert & Ulbrich recommends

Benefit from the ECJ decision and initiate the procedure nowto be compensated even faster. We advise you free of charge and without obligation.

Der Beitrag EuGH stärkt die Verbraucherrechte im Abgasskandal und bewertet das Thermofenster als rechtswidrig erschien zuerst auf R&U.

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.

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Coolant target temperature is not permitted

The reason for the recall of some Mercedes-Benz GLK vehicles is that the pollutant and exhaust gas strategy was classified as inadmissible due to a “regulated coolant thermostat” during engine warm-up.

With coolant target temperature control, a software function activates a special temperature control that artificially keeps the coolant circuit cooler and delays the warming up of the engine oil. Only in this way can nitrogen oxide levels on the test bench remain below the legally prescribed limits. However, in real-world driving conditions, this function is deactivated, and the legal limit of 180 mg/km is significantly exceeded. The software function was discovered during emissions measurements on a Mercedes GLK 220 CDI with the OM 651 diesel engine and Euro 5 standard.

The Federal Court of Justice (BGH) has also multiple positive for consumers. Only recently, the Federal Court of Justice (BGH) ruled again in a case we were conducting that the judgment of the Higher Regional Court (OLG) of Koblenz had to be overturned and referred back to the Court of Appeal for a new decision (Federal Court of Justice decision of 20 April 2022, Ref. VII ZR 720/21). This case also concerned a used Mercedes-Benz GLK 220 CDI BE 4M (emission class Euro 5). The vehicle is equipped with a Diesel engine type OM 651 equipped.

Rogert & Ulbrich recommends Mercedes-Benz drivers

If you are the owner of a Mercedes-Benz, you should now Chance of a possible compensationThe law firm Rogert & Ulbrich was the first law firm in Germany to be able topositive decisionbefore the Federal Court of Justice in a Daimler case. Please contact us and let usyour demandsCheck without obligation and free of charge.

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Both the Regional Court and the Higher Regional Court had previously dismissed the plaintiff's claim and had not awarded him any damages. However, the Federal Court of Justice criticised the plaintiff's factual submission that Exhaust gas purification The driver's vehicle's performance is controlled by a software function that detects whether the vehicle is on the test bench and, in this case, activates a coolant target temperature control (CTC). When a CTC is activated, nitrogen oxide emissions are reduced to the permissible level.

BGH considers immoral behavior to be given

The Federal Court of Justice (BGH) stated that a mandatory recall by the Federal Motor Transport Authority (KBA) does not sufficiently establish the existence of an inadmissible defeat device. Rather, according to established case law of the highest courts, circumstances must exist that make the conduct of the persons involved appear particularly reprehensible (cf. BGH ruling of September 16, 2021, Ref. No. VII ZR 190/20). By using a Test bench recognition software According to the BGH, however, this would constitute immoral conduct.

The KBA has been investigating since autumn 2018 on suspicion of impermissible shutdown device against Daimler AG. The use of a software, which detects whether the vehicle is on the test bench and then reduces nitrogen oxide emissions, appears to be immoral according to the Federal Court of Justice. Nitrogen oxide emissions are thus only minimized on the test bench and not in real driving conditions on the roads. There, the legal limit of 180 mg/km is significantly exceeded. The KSR keeps the coolant circuit artificially colder and delays the warming up of the engine oil. This results in significantly lower NOx formation and compliance with the limit values on the test bench. However, if the engine is started without the test bench detection software, the KSR does not take effect. The result: The coolant and engine oil heat up more quickly and nitrogen oxide emissions are higher.

Rogert & Ulbrich recommends Mercedes drivers

If you are the owner of an affected vehicle with Engine type OM651 you should now Chance of a possible compensationThe law firm Rogert & Ulbrich was the first law firm in Germany to be able topositive decisionbefore the Federal Court of Justice in a Daimler case. Please contact us and let usyour demandscheck without obligation and free of charge. 

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Der Beitrag Erneuter Erfolg im Mercedes-Abgasskandal vor dem BGH erschien zuerst auf R&U.