The Federal Court of Justice (BGH) strengthens the position of diesel plaintiffs who have financed their car by hire purchase. They can also be entitled to damages if they have not made use of a right of return in the loan agreement, the Karlsruhe judges ruled on Thursday in an Audi case. However, the central question of whether the VW subsidiary is generally liable for emissions manipulation of its own engines remained unanswered for the time being. (Az. VII ZR 389/21)
The decision on the so-called securitized right of return is transferable to other car brands affected by the diesel scandal. It keeps open the possibility for customers to sell the car back to the dealer at a fixed price when the final installment is due.
The man in the case had bought his Audi A6 at the beginning of 2017 and opted for financing through Audi Bank. At the end of 2018, the Federal Motor Transport Authority (KBA) complained about the engine – an EA897 model – because of an inadmissible defeat device and ordered the recall. The plaintiff claims damages. He did not use his right of return, in the meantime all installments have been paid.
The Higher Regional Court (OLG) Celle had considered this to be contradictory in the second instance. After all, the man would not have had to keep the car, he had voluntarily decided to do so.
Genitive
The highest civil judges of the BGH now rule differently: The damage arises when the contract is concluded and is not waived by a right of return. Senate Chairman Rüdiger Pamp said it could make more economic sense for the buyer to rely on damages. Just because someone does not make use of the right of return, this is not yet a confirmation of the purchase contract.
Whether the plaintiff actually receives money, however, is completely open. His case has to be renegotiated in Celle, because the Higher Regional Court judges had no longer dealt with a possible liability of Audi because of their assessment of the right of return. Before the BGH, this question could therefore not play a role.
The Karlsruhe judges had actually wanted to negotiate a second, very similar case in parallel, which the buyer had decided for himself. The Higher Regional Court of Koblenz had not seen any problem in the right of return – and was of the opinion that Audi was liable for the damage incurred due to immoral intentional damage.
Presumably, the BGH would also have commented on this point. Audi and VW, however, had withdrawn their revision on Wednesday at very short notice. Reason: It was decided to concentrate the BGH hearing “on one procedure”.
Thus, the Koblenz judgment is final. Lawyer Claus Goldenstein, whose law firm is very active in the exhaust gas scandal on the consumer side, said: “Audi pays damages to a single plaintiff in order to prevent a landmark judgment and a resulting wave of lawsuits.” Many claims threatened to become statute-barred at the turn of the year because the cars had already been recalled in 2018.
“No harm”
Audi emphasized that the Federal Court of Justice had “commented on a concrete procedure in a special constellation” in its decision. “The judgment thus does not concern the question of immoral damage and does not allow any conclusions to be drawn about this. From our point of view, the plaintiff did not suffer any damage.”
After the exhaust gas scandal surrounding the VW EA189 engine was exposed in autumn 2015, the larger Audi engines quickly came under suspicion. In March 2017, the public prosecutor’s office began an investigation. Since September 2020, ex-Audi CEO Rupert Stadler, former Audi engine boss and later Porsche board member Wolfgang Hatz and two senior Audi engineers have been on trial in Munich.
Audi is also accused of having hundreds of thousands of diesel engines manipulated in such a way that they passed emissions tests even though they emitted too many toxins in road traffic. The KBA had ordered a number of recalls, according to Audi, around 225,000 vehicles are affected.
According to the Ingolstadt-based carmaker, almost 8600 first-instance and around 650 second-instance judgments on Audi diesel engines (V-TDI) had been issued by the end of November. The judges had decided in favor of Audi in around 80 percent of the cases.
However, supreme court rulings on Audi have so far only been made with regard to the VW EA189 engine, which was also used in smaller Audi diesels. Affected Audi buyers have usually sued VW here – and in many cases also got money back. Plaintiffs who have taken action against Audi have it much more difficult. Because the BGH expects concrete evidence that someone at Audi knew about the illegal exhaust technology. However, several judgments of the Higher Regional Court of Munich, which had justified this assessment in great detail, stood up to scrutiny in November. (dpa/os)
Also read:
Claims against car dealers: BGH creates clarity with new exhaust gas scandal ruling
BGH decides in favor of dealers: Diesel buyers cannot simply withdraw from the purchase
Exhaust gas scandal – Buyer’s lawyer speaks of “shock”: BGH sets two-year deadline for new car replacement
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