The diesel scandal has now been dragging on for several years, but so far there is still no fundamental ruling from the highest court. But this is about to change. Since April 5th, a lawsuit by a car buyer against the car manufacturer Volkswagen has been before the highest German court, the Federal Supreme Court in Karlsruhe. The case concerns possible claims for damages by the plaintiff against VW. The plaintiff had purchased a used diesel vehicle of the manufacturer from a dealer in early 2014. Since the VW diesel vehicle is equipped with a cut-off device, the plaintiff wants to return the used car and get back the full purchase price of approximately 31,500 euros. In particular, the question is whether the purchase of cars containing the EA189 diesel engine could be considered as actually causing harm to customers.
It was only at the end of February that VW reached an agreement with the Federation of German Consumer Organisations on compensation payments for approximately 260,000 German motorists who had joined a class action suit. The deadline for accepting VW's offer expired on April 20.
After the first day of the hearing, a first positive trend for the plaintiff is now becoming apparent, as the judges are sceptical in a preliminary assessment of VW's attitude that owners of a diesel vehicle have not suffered any damage due to the illegal exhaust technology. VW is critical of this initial assessment, as the risk of a shutdown had “never existed at any time.”
The pending verdict could set a precedent for further lawsuits not only against Volkswagen, but also against other automobile companies. It can also be assumed that the ruling of the Federal Supreme Court will also have an impact on proceedings in other European countries.
ECJ: Shutdown devices not allowed
In addition to the proceedings in Germany, the Advocate General of the European Court of Justice (ECJ), Eleanor Sharpston, in a French case against VW, published an opinion on the admissibility of so-called thermal windows, temperature-dependent cut-off devices. In the opinion of Advocate General Sharpston, a device which regulates the operation of the exhaust gas purification system of vehicles with diesel engines upwards during the registration test of these vehicles is a "cut-off device" prohibited under EU law.
The Advocate General takes the view that only direct risks of damage which affect the reliability of the engine and result in the vehicle presenting a real danger while driving can justify the presence of a cut-off device. Advocate General Sharpston therefore considers that the objective of slowing down the ageing or clogging of the engine does not justify the use of a cut-off device. It is for the national court to determine whether the device in question falls within the parameters of that exception. However, the Advocate General points out that, according to the expert appointed by the national court, the ERG system "does not damage the engine", but may reduce the engine's power as it is used and cause it to clog up more quickly, resulting in "more frequent and more costly" maintenance work. In the light of that finding of the expert's report, the Advocate General considers that the cut-off device in question does not appear to be necessary to protect the engine from damage or accidents and to ensure the safe operation of the vehicle.
It can be assumed that the judgments of the ECJ in the diesel emissions scandal will be based on these expert opinions. Furthermore, the assessment that cut-off devices are not permissible would possibly affect all diesel engines currently in use. ECJ Advocate General Campos Sánchez-Bordona had already clarified in an opinion at the beginning of April that under European law a company can be sued by the buyers of manipulated vehicles in the courts of the Member State in which the vehicles were purchased.
- VW zu BGH Einschätzung: Autokauf muss nicht Schädigung sein, Süddeutsche Zeitung, 5 May 2020.
- ECJ press release no° 52/20, Advocate General’s Opinion in Case C-693/18 CLCV and Others (defeat device on a diesel engine), 30 April 2020.