Victims of the extensive data theft at Facebook can now assert claims for damages with comparatively minimal requirements. It is sufficient to prove that they were affected by the incident. It is neither necessary to prove the misuse of the data nor do those affected have to prove that they were particularly adversely affected by the incident.

The Federal Court of Justice (BGH) has made use of the new option of leading decision proceedings for the first time. This supreme court decision is now of great significance for thousands of similar cases at regional and higher regional courts in Germany. However, the presiding judge of the sixth civil senate, Stephan Seiters, emphasized that the damages awarded for a mere loss of control could not be excessive. Seiters cited an amount of 100 euros as an example. The lower court, the Higher Regional Court (OLG) of Cologne, had rejected the claim for damages. This decision was overturned by the BGH, and the case was remanded to the Higher Regional Court of Cologne for further clarification. The Higher Regional Court must now further investigate the facts of the case, which had previously been omitted due to the blanket rejection of claims.

Personal data of 533 million users surfaced on the Internet

In April 2021, data from approximately 533 million Facebook users from 106 countries was published online. The perpetrators had accessed the data via the "Find Friends" function by entering random phone numbers and accessing users' personal information if matches were found. The published connection data includes first and last names, country, gender, phone number, and, in some cases, employer.

Following the incident, numerous lawsuits were filed, most of which have so far been unsuccessful in state and higher regional courts. Facebook's parent company, Meta, consistently defended itself by claiming the lawsuits were unfounded. After last week's hearing, the company's lawyers emphasized that the incident did not constitute a data breach and that Facebook's systems had not been hacked.

Der Beitrag BGH stärkt Schadensersatzansprüche nach Facebook-Datendiebstahl erschien zuerst auf R&U.

The two cases concerned a VW Golf Cabrio (VIa ZR 8/21) with a purchase price of EUR 30,213 and a VW EOS 2.0 l TDI (VIa ZR 57/21) with a purchase price of EUR 36,189. The purchase of both vehicles was a new cars with a diesel engine of EA 189 seriesBoth vehicles have been equipped with software that detects whether the vehicle is on the test bench or not and switches to the appropriate exhaust gas recirculation modes.

Residual damages claim applies up to 10 years after purchase

The remaining claim for damages is valid for up to 10 years after the purchase of a new car. It is intended to deprive the person who caused the damage of the enrichment that he was able to achieve through his illegal actions, despite the statute of limitations on the main claim.

This means that those affected who purchased their car in 2012 and later could benefit from this decision and still compensation According to the BGH, this is calculated in the same way as in the case of a rescission of the contract for intentional immoral damage, so that plaintiffs only have to offset compensation for use against the purchase price.

Rogert & Ulbrich: Recommendation for residual damages claims

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

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The affected vehicles were all purchased second-hand and diesel engines of the EA189 series (EU 5) equipped. 

Does VW have to pay remaining compensation?

In the so-called "residual damages claim" According to § 852 BGB, this is a claim based on unlawful acts, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.  

The claims from the 5 proceedings were rejected in the previous instances due to the statute of limitations. The statute of limitations began in 2015, since from October 2015 onwards the plaintiffs were at least grossly negligent in their ignorance of the facts required for the statute of limitations to begin. The diesel scandal was omnipresent in media reports, so the plaintiffs must have been aware of it. There is also no claim under Section 852 S. 1 of the German Civil Code, since this claim does not apply to used cars.

However, it remains questionable whether the courts can assume that the plaintiffs knew about the diesel scandal simply because of the extensive media coverage. Therefore, there is a need for further clarification in the diesel scandal, on which the judges of the Federal Court of Justice will comment.

It also remains questionable how Karlsruhe will comment on the claim under Section 852 S. 1 of the German Civil Code (BGB) with regard to used cars. In some cases, residual compensation is granted for used cars. In the case of a used car deal in which the plaintiff purchases the vehicle from a used car dealer or a private vehicle owner, the defendant has not gained anything. However, this should not preclude the claim for legal damages. The defendant has not gained any income directly from the plaintiff, but rather from the original contractual partner. This should be sufficient to justify a claim for residual damages. When the vehicle was resold by the original purchaser to the plaintiff, the inflow of assets was maintained.

It will therefore remain exciting in 2022 to see how the Federal Court of Justice will comment on this and how the diesel scandal will continue.

Rogert & Ulbrich recommends for 2022

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already been able to numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

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In a case we conducted before the Higher Regional Court (OLG) Stuttgart, the 1st Civil Senate confirmed the first instance judgment in a very clear and precisely formulated judgment and rejected the appeal of the VW AG In addition, the Senate also happily cleared up some of the 'ifs' and 'buts' in Volkswagen AG's argument and sentenced Volkswagen to pay damages and to take back the defective vehicle as in a conventional procedure without limitation period issue (OLG Stuttgart judgment of November 9th, 2021, case number 1 U 379/20). 

The plaintiff had bought the car directly from Volkswagen AG in 2013 for around €36,000 as a new car. However, the lawsuit against Volkswagen was not filed with the regional court in Ellwangen until August 2020. Actually, too late, as the Senate also confirmed in its judgment. 

Residual Damage Claim – Hopeful Tones

But only actually, because the legislator has here provided the injured party with another claim – the “remaining claim for damages“ according to § 852 BGB. This is a claim based on tort, which can still be claimed even after the statute of limitations has expired. This claim only expires in ten years from its creation.  

The main purpose of this provision is to ensure that a person who has caused harm to another person through an unlawful act does not continue to enjoy an unlawfully obtained advantage.  

Contrary to the statements of Volkswagen AG, the application of Section 852 sentence 1 of the German Civil Code cannot be excluded on the grounds that the plaintiff did not suffer any economic loss as a result of the obvious immoral damage. Section 852 of the German Civil Code extends the tort claim into the statute of limitations, and the provisions of Section 852 of the German Civil Code regarding the claim for residual damages do not change the liability requirements. 

The Senate did not accept the argument put forward by VW that there was no particular risk of litigation due to the possibility of a model declaratory action and that a claim for residual damages should therefore not be considered. This would reverse the aim expressly stated by the legislature that the illegally obtained advantage does not remain with the person who caused the damage in cases of limitation. In doing so, the Senate referred directly to the statements in the Federal Printed Paper on the introduction of the model declaratory action: "If the parties cannot reach an agreement - for example in the context of out-of-court dispute settlement - and the parties concerned refrain from filing a lawsuit, the illegally obtained profit remains with the provider, who thereby gains a competitive advantage over law-abiding competitors."  

In the opinion of the Senate, the amount of the claim should be quantified exactly as in the usual lawsuits in the emissions scandal - and should not be limited to the profit made. In this case, the plaintiff was awarded just under €20,300 for his vehicle. 

Residual damage claim gives legitimate hope

We at Rogert & Ulbrich recommend having your claims reviewed. Even if you think your claims have expired, it may be worth having them reviewed again. Our initial consultation is free and non-binding. We have already won numerous judgments for our plaintiffs and have been involved in the diesel emissions scandal since the beginning. Get advice without obligation.

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Der Beitrag Verbraucherfreundliches Urteil zum Restschadensanspruch erschien zuerst auf R&U.