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A lot of work for the BGH in 2022: Civil law processing of the VW emissions scandal continues

Hundreds of thousands of individual comparisons with customers have been concluded, fundamental questions have been clarified – but the civil law processing of the emissions scandal will not let go of the German auto industry in 2022 either. At Volkswagen, where “Dieselgate” started over six years ago, consumers and corporate lawyers expect further decisions from the Federal Court of Justice (BGH) from February onwards.

In Karlsruhe, until March, it is expected to be a matter of the exact cases in which claims for damages due to the depreciation of vehicles with manipulated emissions cleaning are statute-barred. Five parallel proceedings on the topic are planned.

In principle, those affected should have gone to court within a three-year period by the end of 2018. The BGH has already decided: Anyone who undoubtedly knew about the diesel scandal as early as 2015 and did not file a suit until 2019 or later will get nothing. However, courts may not impute this to plaintiffs solely because of the broad media coverage – therefore, there may be a need for further clarification in individual cases.

In addition, there is the question of whether diesel owners still have claims when buying a car after VW has informed the financial markets about the “diesel issue”. Oral negotiations are planned for this. The BGH has basically rejected the liability of the car manufacturer for such late purchases. However, the judges also want to examine whether VW may have to pay so-called residual damages despite the statute of limitations.

Possible compensation for leasing customers

Possible compensation for leasing customers remains a similarly complex issue. The direction given by the BGH was that payments made do not have to be reimbursed if the vehicle is used without restriction – at least not if no subsequent takeover of the diesel vehicle was agreed. Additional dates are due for April.

A few large chunks were cleared away in the past year. According to VW, until February 2021, the eligible owners of cars with the “scandal engine” EA189 mostly accepted their offer of damages, which had been negotiated in 2020 as part of the model declaratory action with the Federal Association of Consumer Organizations (vzbv). Around 244,000 diesel drivers from the Group brands opted for it. Some reported delays in processing or payment, and Volkswagen regretted such incidents.

Quite a few other customers were not satisfied with the comparison package or they also complained on their own for other reasons. In May 2020, the BGH issued a landmark judgment on the cases that had reached it – as a result, VW said it had come to an agreement with more than 40,000 additional customers so far.

Overall, the focus has recently shifted somewhat to other car manufacturers. According to a BGH spokesman in mid-December, around 1200 diesel proceedings were pending in Karlsruhe at the end of 2021, around half of them still related to the Wolfsburg-based company. Initially, a good three quarters of the proceedings were VW cases. This does not include the Audi subsidiary, which is recorded separately. The statistics also include non-admission complaints that can be submitted to the BGH if a lower instance has not approved an appeal.

The VI, who was originally solely responsible in Karlsruhe. Civil Senate has long been unable to cope with the flood. In the meantime, fellow judges of the Seventh Senate had taken over some of the cases. Since August there has been a specially set up “auxiliary body” (VIa. Civil senate). According to the BGH, around 600 new proceedings have been received there since then. Almost 300 VW cases are currently pending.

Claims for damages from shareholders

In terms of content, following the fundamental judgment of May 2020, which paved the way for many consumers to claim damages from VW, the more specific constellations are now above all to be clarified. In 2021, for example, it was decided that the compensation would also include extra costs for installment financing, such as loan interest, or that the resale of the car would not lose any claims. Pure leasing customers, on the other hand, have hardly had any chances so far.

Successful plaintiffs cannot claim interest retrospectively on the purchase price of their diesel (tort interest). The judges also emphasized that the mandatory update, with which the fraudulent software was deactivated, does not represent a new inadmissible defeat device – and that this point can therefore usually not justify a new claim for damages. According to the group, many proceedings abroad have meanwhile progressed or ended. However, class actions still exist in some major EU markets such as France, Belgium and Portugal, as well as the UK – “often at an early stage”.

There are also complaints about the newer EA288 engine, which, according to VW, has no impermissible defeat device and is therefore “not comparable” to the EA189. Here, courts have so far ruled almost exclusively in favor of the manufacturer. “Of over 10,000 regional court judgments, almost 99 percent were in favor of Volkswagen,” says Wolfsburg. In the more than 1000 proceedings before higher regional courts (OLG), the proportion is as good as 100 percent. At the beginning of 2021, around 8,500 lawsuits from customers were pending for EA288.

It is still relatively unclear how claims for damages from VW shareholders and major investors related to the emissions affair are assessed. The OLG Braunschweig intends to continue the oral hearing in this matter at the end of April after the parties have submitted statements. It is about the question of whether the group may have informed the financial world too late in 2015 about the threatening billion-dollar risks of “Dieselgate” and thus be partly responsible for the sometimes considerable price losses.

Volkswagen maintains the position here that the Board of Management “did not (had) any reliable knowledge until the summer of 2015 that the software used in US diesel vehicles contains a” defeat device “which is forbidden under US law”. Furthermore, the development and use of the deception code were carried out by “employees at lower levels of the hierarchy”, who “specifically hid their actions from higher management levels”. Who knew what about the software, when and in what role, is also a central issue in the fraud trial against former managers and engineers at Volkswagen, which has been going on at the Braunschweig regional court since September. (By Jan Petermann and Anja Semmelroch, dpa)

Also read:

BGH ruling on the exhaust gas scandal: Securitized right of return does not exclude compensation

Claims against car dealers: BGH creates clarity with a new exhaust scandal ruling

BGH decides in favor of the dealer: Diesel buyers cannot simply withdraw from the purchase

Exhaust gas scandal – buyer lawyer speaks of “shock”: BGH sets two-year deadline for new vehicle replacement

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Lenny Li

I started to play with tech since middle school. Smart phones, laptops and gadgets are all about my life. Besides, I am also a big fan of Star War. May the force be with you!

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