BGH gives VW plaintiffs little hope

According to the BGH, anyone who only bought their vehicle after the emissions scandal became known should have little chance of claiming damages. A lawyer explains what the chances are.

The legal dispute over the VW emissions scandal is far from over.

Diesel plaintiffs, who only bought their car after the exhaust gas scandal broke out, will find it difficult to get compensation from VW anyway. This became apparent on Tuesday in a hearing at the Federal Court of Justice (BGH) in Karlsruhe.

Volkswagen could possibly have done more to clarify, said the presiding judge Stephan Seiters. In view of the announcements of the group on September 22, 2015 and the extensive media coverage that followed, the Senate does not seem to assume that buyers could have been completely unsuspecting. In the second negotiated question, whether successful plaintiffs can also receive interest from VW in addition to compensation, things look bad for diesel owners.

Both judgments (Az. VI ZR 397/19 and others) should no longer be announced on Tuesday, but at short notice, as Seiters said. At first it was not clear when exactly. For Thursday, the Senate has already announced the verdict in two other diesel cases.

A VW spokeswoman said that the group was still striving to “end the many proceedings that were comparable to the basic judgment in agreement with the plaintiffs”. One wants to “relieve the judiciary as soon as possible”.

Rescue by the ECJ?

From the point of view of some lawyers, however, there might still be a possibility of enforcing claims for compensation. “At the end of April, the General Advocate of the European Court of Justice (ECJ) announced in a final motion that all vehicle functions are considered illegal shutdown devices if they lead to higher exhaust emissions in real operation than on the test bench,” commented the lawyer Claus Goldenstein from the Goldenstein & law firm. Partner who was responsible for the first BGH judgment in the VW diesel scandal in May 2020 and represents a total of more than 21,000 clients in the matter.

Goldenstein emphasized on Tuesday that numerous tests had shown that the manipulated VW diesel vehicles were only actually clean at certain temperatures after the mandatory software update had been carried out. A disconnection device is also integrated as part of the VW software update. However, this so-called thermal window differs from the manipulation software originally used and has so far not been considered illegal – but this is likely to change soon, the lawyer believes.

It can be assumed that the judges of the European Court of Justice will follow the legal opinion of the Advocate General in their early judgment. Then the newly used defeat device from VW would also be declared illegal and affected owners of VW vehicles could enforce their rights even though they only bought their car in 2016 or even later.