Upcoming BGH Decision Indicates Consumers Will Have Even Easier Access to Compensation!
On Monday, May 8, 2023, the first hearing of the Federal Court of Justice (BGH) regarding the surprising ECJ ruling in the diesel emissions scandal took place. This led to new developments that affected consumers could benefit from in the future.
In 2023, the BGH publicly discussed consumers' right to compensation in the context of the emissions scandal – the prevailing opinion expects a consumer-friendly ruling to be announced on June 26, 2023.
The compensation claim is expected to concern almost all vehicle models equipped with a Euro 5 or Euro 6 diesel engine.
The judges argued in favor of consumers, aligning with the ECJ ruling, and did not follow the arguments presented by the automobile manufacturers’ lawyers. This could lead to the emergence of numerous new compensation claims by affected consumers and finally create a clear legal situation in the diesel emissions scandal case.
Below you will find a statement from Thorsten Krause, Managing Attorney of our renowned partner law firm KAP Rechtsanwälte:
Federal Court of Justice after ECJ – Will Nothing Remain the Same?
Karlsruhe, May 8, 2023 – It was the first hearing of the Federal Court of Justice (BGH) following the groundbreaking decision of the Court of Justice of the European Union (ECJ).
It was eagerly awaited how the Federal Court of Justice (BGH) would position itself regarding the findings of the ECJ, after the European judges had clearly contradicted the BGH on essential points and thus established a simplified liability for the car manufacturers. The ECJ had determined that the temperature-controlled defeat device installed in almost every Euro 5 and Euro 6 diesel is illegal, and manufacturers cannot rely on previous excuses. This defeat device, commonly referred to as the "thermal window," had so far not been sufficient on its own for the BGH to grant compensation to diesel owners. According to the BGH, the approval standards are not "third-party protective" norms. The approval regulations should therefore only apply between the manufacturer and the approval authority. Third parties, such as diesel buyers, should not be able to invoke them. The ECJ clarified that this third-party protection is indeed given.
The Karlsruhe judges at the BGH made no secret during the roughly five-hour hearing that they will largely follow the ECJ’s line. Three cases were heard simultaneously: Volkswagen with the EA288 engine, an Audi purchase (3-liter EA 896Gen2BiT engine), and the purchase of a Mercedes Benz (OM651 engine). The BGH’s special senate more or less clearly rejected most of the arguments from the manufacturers’ lawyers of the sued manufacturers. As a result, in our assessment of this marathon hearing, it is very likely that the BGH will award compensation already on the basis of the thermal window.
The major innovation will likely be the question of how to calculate the claim that a diesel vehicle buyer can derive from the existence of a thermal window. The BGH made several statements indicating that if a thermal window is present, it will neither apply the previous calculation methods for the "large" nor the so-called "small" compensation but might introduce a completely new calculation method that lies between these two extremes. The specifics of this method and the reasoning behind it, should the BGH not stick to the previously established calculation methods, will be announced on June 26, 2023. On that day, the BGH intends to announce its decisions in the three cases heard today.
For affected diesel drivers, this means that after the ECJ’s decision and the tendencies of the BGH, they can assert claims against the manufacturers for appropriate compensation.
If you have any questions or comments on this topic, please feel free to contact us!