Illegal Defeat Device Verdict - Diesel buyers can now claim damages

Car buyers can claim damages from the manufacturer if they have suffered damage due to an illegal defeat device installed in the vehicle. EU law protects the interests of individual buyers, the European Court of Justice (ECJ) in Luxembourg replied on Tuesday to questions from the Ravensburg District Court. This must decide on a lawsuit against Mercedes-Benz because of a thermal window. (Az. C-100/21)

The ECJ judgment could have a major impact on German case law. Because at the Federal Court of Justice (BGH) plaintiffs only had a chance of compensation if they were deliberately and intentionally deceived by the manufacturer in an immoral way. These strict criteria were only met with the VW scandal engine EA189. Negligent action is now sufficient for the ECJ – which is easier to prove.

With thermal windows, a technology used in many models from different manufacturers, exhaust gas cleaning in diesel vehicles is controlled depending on the outside temperature. In an earlier judgment, the ECJ decided that the thermal window was an inadmissible switch-off device.

The judges in Germany must now implement these requirements. In order to await the ECJ ruling, courts of all instances had shelved mass diesel proceedings in which this question was important. At the BGH alone, more than 1900 revisions and complaints about non-admission are pending, the clear majority had been postponed because of the ECJ proceedings.

As mentioned, the Federal Court of Justice (BGH) had previously rejected claims for damages, as it made intent to damage the buyer a prerequisite for this, but could only recognize negligence on the part of the car manufacturer.

“This is a sensational verdict. This decision greatly simplifies the enforcement of emissions scandal claims for affected consumers,” says attorney Claus Goldenstein. "Millions of people across Europe can benefit from today's verdict." He suspects that almost eight years after the emissions scandal became known, another wave of lawsuits is rolling towards the car manufacturers.

Thermal windows are part of the engine control system, which throttle exhaust gas cleaning at cooler temperatures. Car manufacturers argue that this is necessary to protect the engine. Environmental organizations, on the other hand, see it as a tool that helps to make car emissions appear smaller under test conditions than they are in real traffic. The ECJ considers these thermal windows to be permissible only within very narrow limits.

Thermal windows were also used as standard by other manufacturers. Since the ECJ ruling relates to unlawful defeat devices in general, it could also be transferrable to other functionalities in the exhaust technology of diesel cars, which are currently being scrutinized by the courts.

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