In its long awaited and eagerly awaited judgement, the Federal Court of Justice awarded the plaintiff damages for immoral intentional damage, minus the benefit of use. Numerous VW customers are therefore entitled to damages.
Why did it come to blows?
The plaintiff purchased a used VW Sharan with a type EA189 diesel engine from a car dealer in early 2014. Its engine control software detects whether the vehicle is subjected to a certain test on the test bench. In this case, the engine control software caused the vehicle to emit less nitrogen oxides than outside the test bench. As a result, the required nitrogen oxide limits were only met on the test bench.
In September 2015, VW admitted the use of the engine control software described.
The Regional Court dismissed the claim for damages. The plaintiff's appeal was successful, so that the Higher Regional Court ordered VW to pay damages, less the benefit of use, concurrently with the handover and transfer of ownership of the VW Sharan.
The Federal Supreme Court essentially rejected VW's appeal. In his appeal, the plaintiff unsuccessfully objected to the imputation of the kilometres driven as a benefit of use.
Why did VW commit immoral intentional damage?
The Federal Court of Justice confirmed the legal opinion of the Court of Appeal that VW had intentionally harmed the plaintiff in an immoral manner.
The development and sale of the EA189 diesel engine with the engine control software in question had been a deliberate strategic decision by VW. VW had consciously accepted increased environmental pollution and the danger of an operating restriction or ban. This behaviour was particularly reprehensible towards honest buyers, also of used cars.
VW had to accept responsibility for the conduct of the persons responsible for engine development at VW.
Why did the plaintiff still lose in part?
First, the Federal Supreme Court clarified that the plaintiff's damage lies in the contractual obligation to pay for the VW Sharan. The plaintiff would not have concluded this purchase contract if he had known about the deception by VW.
However, the plaintiff must take the kilometres driven into account as a benefit of use. Despite the deception, the plaintiff should not be in a better position than he would have been without the unintentional purchase contract.
Who benefits from the Federal Supreme Court's ruling?
Both buyers of new cars and of used cars benefit.
What can or must those affected do?
First of all, those affected must realise one thing:
Let us advise you
The Federal Supreme Court has decided an individual case. Even if the Federal Supreme Court's reasoning is a "blueprint" for further proceedings, each case is unique. It may therefore be that individual affected persons are not entitled to claim damages due to the special circumstances of the individual case. This would lead to annoying and unnecessary costs. For this reason, those affected should first seek detailed legal advice. If the affected person is entitled to damages, the opposing party must also regularly reimburse the lawyer's fees.
We enforce your claims
The next step is for those affected to decide against whom they want to direct their claims, against the dealer or against the manufacturer VW. The chances of success against both are high. Attention: Those affected are unlikely to have a claim against a private seller. In this case, the only remaining option would be to file a claim against the manufacturer.
Finally, those affected would have to decide what exactly they want. In principle, those affected can demand repayment of the purchase price against return of the vehicle and crediting of the kilometres driven as a benefit of use. A claim against the dealer for delivery of a new car is also possible. Finally, it is also conceivable that the affected party keeps the vehicle and agrees with the dealer or the manufacturer on an appropriate reduction amount.
The response options are thus highly diverse. Despite all the euphoria, however, those affected should not think that they will be welcomed with open arms by dealers or manufacturers. Presumably, some players on the other side will try to keep their own damage as low as possible.
Is there a rush?
As with all claims, the sword of Damocles of the statute of limitations hangs over the claims of those affected. In the present case, this is also because the "diesel scandal" has been known since mid-2015.
However, a detail of the limitation rules in the BGB will probably help those affected. In the case of an unsettled legal question, the statute of limitations begins at the end of the year in which the legal question was settled by the highest court. In the case of the BGH ruling of 25.05.2020, this means that those affected can probably still sue until the end of 2023 if they have not reached an agreement with the dealer or the manufacturer before then.
Conclusion
The chances of a refund of a large part of the purchase price for a VW diesel car are better than ever for those affected. As is so often the case, the pitfalls lie in the details. We therefore strongly recommend that you seek advice from us on the legal options. We are therefore happy to answer any questions you may have on the subject of claims for damages against VW.
Source: BGH, judgement of 25.05.2020, ref. no. VI ZR 252/19
Previous instances: Bad Kreuznach Regional Court, judgment of 05.10.2018, ref. 2 O 250/17; Koblenz Higher Regional Court, judgment of 12.06.2019, ref. 5 U 1318/18
GoldbergUllrich Lawyers 2020
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and specialist in information technology law
