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Waiting for Karlsruhe: Basic verdicts on diesel are drawing closer

2019-08-25T08:41:07.172Z

TIME ONLINE | News, backgrounds and debates



Karlsruhe (dpa) - Just under four years after the influx of the diesel scandal more and more complaints of affected car owners reach the last instance.

The highest civil judges of the Federal Court of Justice (BGH) now have more than 30 cases, as a spokeswoman for the German Press Agency in Karlsruhe said.

Three of them are revisions approved by higher regional courts. The BGH will decide on these lawsuits in any case. These are in each case claims for damages against Volkswagen as a manufacturer. In all other cases, the unsuccessful party wants to reach its appeal to the BGH, the approval of their revision yet. That can fail even at formal hurdles.

This year, important points were no longer expected, said the spokeswoman. The Braunschweiger ruling, which has been challenged by the legal services provider Myright, will definitely not be negotiated until 2020. The vast majority of cases still dealt with the courts of appeal. "The big wave has not reached us yet."

High-court decisions on diesel are eagerly awaited. Many fundamental legal questions are unclear - and are therefore answered differently by the regional courts and higher regional courts everywhere. If there is a BGH judgment, the lower courts will predominantly follow this legal concept.

But still not a single Diesel complaint was negotiated in Karlsruhe. Two negotiations had actually been scheduled for the beginning of the year. However, both plaintive car buyers made shortly before a backlash - once officially, once very likely because of a comparison, so a favorable agreement without judgment.

On the second occasion, the competent Eighth Civil Senate did not offer that: in a surprise coup, the judges issued a so-called referral decision to the public. This is a preliminary legal assessment that is usually only given to lawyers to prepare better for the trial.

Since then, it is clear that the BGH classifies illegal exhaust gas technology as a material defect. This is a prerequisite to succeed against the dealer. The decision also states that new car buyers, despite the interim model change, can claim that their dealer gives them a defect-free replacement car.

But the vast majority of questions remain unanswered. First and foremost, the decision leaves open whether a car is still defective even if the software update ordered by the Kraftfahrt-Bundesamt has been installed. The plaintiff had not had his car retrofitted.

In addition, it was only about buyers of new cars, which argue with their dealer for replacement. Other claimants want to reduce the purchase price or withdraw from the contract of sale. And most of those affected have not sued the car salesman, but VW as the manufacturer.

These procedures, which are not about liability for deficiencies, but about damages, are dealt with by the BGH, the Sixth Civil Senate. According to car driver club ADAC such complaints are especially interesting for people with an older diesel. Because claims against the car dealer can be registered after delivery for a maximum of two years.

The claims for damages are based on the allegation that the manufacturer has deliberately deceived the buyers with the manipulated exhaust gas technology and thus "deliberately committed immoral damage".

The three pending revisions at the BGH are all about this question. In two cases, VW had pulled the short straw: In mid-June, the Higher Regional Court (OLG) Koblenz sentenced the car maker to pay almost 26 000 euros to the buyer of a used VW Sharan (BGH Az VI ZR 252/19). In July, the OLG Karlsruhe, in response to the claim of a Skoda buyer, made a claim for damages on the part of the parent company VW without a specific sum (Case VI ZR 292/19).

Both courts argue similarly: VW have the car "under deliberate concealment of unauthorized software programming brought into circulation," said the Higher Regional Court Koblenz. Authorities, competitors and consumers have been "systematically deceived in order to maximize profits". The plaintiff suffered damage as a result.

Other higher regional courts see it differently, like the OLG Braunschweig. VW did not violate any law or regulation that served to protect the plaintiff or his assets, the judges decided in February. That means: no compensation.

Behind the revision in this case (Az. VIII ZR 61/19) stands Myright, a legal service provider who claims to have collected and represents the claims of tens of thousands of diesel owners.

The model claim of the consumer centers against VW, which has about 430 000 car buyers affiliated, will end up in Karlsruhe. The trial at the OLG Braunschweig has not yet begun. Process start is on 30 September.

So far, only BGH decision on diesel from 8 January 2019

Federal Court of Justice announcement for publication on 22 February

Judgment of the OLG Karlsruhe of 18 July

Judgment of the Higher Regional Court Koblenz of 12 June

Myright judgment of the OLG Braunschweig of 19 February

Responsibilities of the BGH civil senate

ADAC on the legal situation and possible claims

OLG Braunschweig to the Musterfeststellungsklage

Source: zeit

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