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BGH: No compensation for all VW diesel buyers for software updates

Diesel owners who only bought their car after the emissions scandal broke out will not receive any compensation from VW because of the software update alone. Volkswagen is no longer to be accused of immoral behavior, the Federal Court of Justice (BGH) in Karlsruhe announced on Thursday. The update, with which the illegal exhaust technology had to be deactivated in millions of vehicles, cannot be compared with the switch-off device initially used in the EA189 scandalous engine. (Az. VI ZR 889/20)

Volkswagen welcomed the decision of the BGH. "It has an impact on thousands of pending lawsuits," said a spokesman. "We assume that these can now be ended quickly."

Not "immoral"

The question of the legal assessment of the software update is particularly relevant for plaintiffs who bought a diesel from the VW Group after September 22, 2015. On that day, the Wolfsburg-based car maker made the irregularities public. The BGH has already decided that from this point on, VW is no longer to be accused of immoral behavior.

This group of plaintiffs does not benefit from a basic ruling from Karlsruhe on VW's liability, which paved the way for tens of thousands of diesel owners to claim damages in May 2020. You can return your car - but you will not get the full purchase price back, but you have to count the kilometers driven. Against this background, VW has meanwhile agreed on a settlement with customers across the group in around 34,000 proceedings without waiting for a court decision.

The manipulated exhaust technology had ensured that the cars in the test complied with all pollutant limit values ​​- in reality, however, they emitted too many toxic nitrogen oxides.

The plaintiff in the case now decided had claimed that the so-called thermal window in the software update was nothing more than a new, inadmissible disconnection device. A thermal window is a technology that throttles the exhaust gas recirculation depending on the outside temperature. According to the car manufacturers, this serves to protect the engine.

No fundamental claims for damages

For the BGH, however, the software update does not justify any claims for damages, as the judges have now made clear. Even if the technology should violate legal requirements - which the decision leaves open - this is "not sufficient to qualify the overall behavior of the defendant as immoral". Their use is "not shaped from the outset by malice". Because it works on the test bench in the same way as on the road. Evidence that VW could have deceived the authorities in developing the update are "not shown".

The plaintiff had also alleged that his car was now using more fuel. There are also negative effects on wear and tear. For the judges, this does not change their assessment.

The BGH Senate, which is mainly responsible for the diesel scandal, published the decision on Thursday, completely surprising. The judges had actually wanted to negotiate on the question in February. But that failed because the complaining car owners had withdrawn the revision in two cases. Same game at Daimler: Here, too, there are masses of proceedings due to a thermal window being used. But a supreme court judgment has now been prevented three times by the plaintiffs backing out shortly before the BGH hearing.

"Litigation industry"

Volkswagen and Daimler see law firms at work here who want to keep the question open for as long as possible in order to secure further lucrative mandates. VW legal director Hiltrud Werner recently spoke of a real "litigation industry".

The highest civil judge of the BGH now used a so-called non-admission complaint in order to still be able to make their point of view clear. The plaintiff had not been successful at the Kaiserslautern Regional Court and the Zweibrücken Higher Regional Court, and not even the appeal to the BGH was allowed. The man lodged a complaint against this in Karlsruhe. The judges decided on this with a decision on March 9th without prior hearing.

The Senate had already proceeded in the same way at Daimler in January. However, this decision was a little less clear. In principle, the thermal window alone is not a reason for compensation. Nevertheless, the non-admission complaint was successful. The plaintiff had accused Daimler of having provided incorrect information about the functioning of the exhaust gas recirculation in the type approval process. The Cologne Higher Regional Court has to deal with this again.