Thüringer OLG erachtet weitreichendere Prüfung von möglichen Abschalteinrichtungen bei Daimler AG als erforderlich

The Thuringian Higher Regional Court (OLG) announced in the main hearing on June 29, 2021 that a further presentation or, if necessary, the taking of evidence appears necessary due to further alleged technical devices. The Mühlhausen Regional Court did not sufficiently address this aspect in its judgment dismissing the action.

The case concerns a Mercedes-Benz GLK 220 CDI with the system developed by Daimler AG engine OM 651 with Euro 5 standard.

Installed shutdown devices should be checked more closely

The Mercedes-Benz is equipped with the so-called "thermo window" which reduces exhaust gas recirculation at cooler temperatures. However, there are other shutdown devices installed that influence the emission behavior. In addition to the thermal window, there are other shutdown devices, such as a "coolant target temperature control", a software function that affects the engine control and a software that affects the transmission. With the coolant target temperature control, a software function activates a special temperature control that keeps the coolant circuit artificially colder and delays the warming up of the engine oil. The engine control function bit 15 regulates the treatment of exhaust gases. With all of these software functions, the nitrogen oxide levels on the test bench remain below the legally prescribed limits. In real driving conditions, however, this function is deactivated and the legal limit of 180 mg/km is significantly exceeded.

The Thuringia Higher Regional Court does not consider the use of the thermal window alone to be intentional immoral damage, but other technical devices should also be sufficiently taken into account. It should therefore be examined whether other technical devices were installed that would justify a claim for damages. This would probably require a further presentation or, if necessary, the taking of evidence.

Also The Federal Court of Justice (BGH) in its judgment of 13 July 2021 (VI ZR 128/20) decided that a thermal window alone was not sufficient, but that further tests should be carried out. For the first time, the Federal Court of Justice did not dismiss the case, but decided that the Higher Regional Court should revisit the case.

Rogert & Ulbrich recommends having claims checked

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