Dhe diesel scandal has resulted in tens of thousands of claims for damages in German courts. It is now becoming apparent that car owners cannot expect any compensation if their car controls the exhaust gas aftertreatment via a so-called thermal window. It is true that the Federal Court of Justice (BGH) has not yet passed a judgment on Tuesday after the very first hearing on this subject – such a judgment will only be announced on July 13th. (File number VI ZR 128/20). But the highest civil judge made it clear in Karlsruhe that the use of the thermal window alone does not justify a claim for damages.
“We welcome the fact that the BGH has emphasized in its preliminary assessment that the exhaust gas recirculation control used as such is not immoral,” said a Daimler spokesman on the course of the hearing before the BGH, and added: This assessment is a guiding principle for thousands of legal proceedings in Germany.
Technology in newer cars too
The thermal window defines a temperature range in which the emission control is reduced or even switched off, which is justified with the protection of the engine. The temperatures involved differ from model to model. The technology is used across the automotive industry, including newer models that comply with the Euro 6b and Euro5 emissions standard. The present case concerns a Mercedes C 220 CDI Blue Efficiency from 2012, for which the plaintiff had paid just under 35,000 euros. Now he is suing for the repayment of the purchase price plus 3300 euros in interest plus assumption of the legal costs.
The complaint was last dismissed by the Higher Regional Court in Koblenz. It is expected that the case will be referred back by the BGH to the Higher Regional Court because that court did not investigate certain other allegations of manipulation made by the plaintiff against Daimler. This is about the “coolant setpoint temperature”, a functionality that, like the thermal window, is part of the engine control. However, the Federal Motor Transport Authority (KBA), as the technical authority, did not object to this.
Indeed, this type of manipulation allegation sheds light on the work of some law firms which appear to make various allegations without scrutiny. In the lawsuit that has now been negotiated, the allegation was also cited that the Mercedes did not add enough “Ad Blue” to the system – although no Ad Blue at all was used for the model in question.
As far as the thermal window is concerned, a trend can be seen after the hearing on Tuesday, because the BGH had already given a corresponding assessment in a comparable case in January. At that time, the judges of the 6th Senate ruled that the use of the thermal window was not comparable to the procedure at Volkswagen (VW), where it had been decided “in the interests of costs and profits” to deceive the licensing authorities with the help of software. Because of VW’s intention to deceive, compensation was to be paid, the BGH had already decided in May 2020.
No malicious behavior
“In contrast, when a thermal window is used – as in the present case – there is no such fraudulent action on the part of the defendant automobile manufacturer,” says the Senate’s decision from January (VI ZR 433/19). To assess the behavior as objectively immoral is not justified, it continues. In the plaintiff’s vehicle, the temperature-influenced control of the exhaust gas recirculation used does not differentiate according to whether the vehicle is on the test bench or in normal driving mode.
After the hearing on this Tuesday, even among plaintiff lawyers, there is hardly any possibility of asserting claims for damages because of the use of thermal windows. “The Daimler diesel scandal is far from over. The Federal Motor Transport Authority discovered a total of five different defeat devices in Mercedes cars, ”comments attorney Claus Goldenstein, whose law firm was responsible for the first diesel scandal judgment in May 2020, among other things.
The lawyer from Potsdam claims that Daimler has – similar to VW – specifically developed vehicles that only complied with the prescribed environmental guidelines on the test bench. “In the USA, the Stuttgart-based company reached an agreement with the authorities and 250,000 class action plaintiffs on a billions settlement because of the emissions scandal. But also European Mercedes owners had to accept enormous losses in the value of their vehicles because of the emissions scandal, ”warns Goldenstein. In the current case, the Mercedes driver was represented by the law firm Scheuch & Lindner before the BGH.
With statements like that of Goldenstein, according to Daimler, a regular assembly line activity in law firms is accompanied. The Stuttgart group alone is involved in tens of thousands of legal cases. At the regional court level, there are more than 10,000 decisions in favor of the company. Only 600 cases had been decided against Daimler. There are now more than 500 decisions in favor of Daimler at the higher regional courts. The complaints by Mercedes drivers were only allowed in two cases.
“From our point of view, the law firms are driving a wave of lawsuits with their business model and offensive advertising, which inundated the German courts with a wave of diesel lawsuits, but which in most cases does not bring Mercedes-Benz customers any success,” summarizes a Daimler -Speakers the view of the group together. The fee schedule for lawyers means that lawyers are paid regardless of the outcome of the proceedings.