The Federal Court of Justice is hearing the first case a good four and a half years after the diesel scandal at VW was exposed. The expectations of the Karlsruhe judges are high. It's about basic questions and a lot of money.
Karlsruhe (dpa) - Herbert Gilbert has always been driving a VW. It was always petrol and he was always satisfied.
The trouble started with the diesel, and Gilbert's Sharan 2.0 TDI match is now the inspiration for tens of thousands of other Volkswagen cars, the owners of which claim damages because they feel deceived and cheated in the diesel scandal.
Today, the Federal Court of Justice in Karlsruhe is hearing for the first time in one of the so-called VW proceedings. In concrete terms, it is about Herbert Gilbert's Sharan, but also much more - for the tens of thousands of plaintiffs and also for VW. (Az. VI ZR 252/19)
THE CASE
In January 2014 Gilbert bought his Sharan from a free dealer. Used, 20,000 kilometers on the watch, for 31,490 euros gross. Under the hood is a type EA 189 diesel engine - with inadmissible exhaust technology, which, as it turns out in autumn 2015, ensures that the vehicle only complies with the limit values on the test bench and not on the road. Gilbert is suing VW, wants to return his vehicle and the money back.
The district court of Bad Kreuznach in Rhineland-Palatinate dismissed the suit in October 2018. The Koblenz Higher Regional Court, as the next higher instance, makes a different decision in June 2019: VW owes the buyer damages, has to take back the vehicle and pay back EUR 25,616.10 plus interest. That is the purchase price minus usage compensation. Gilbert, however, wants the full price back, is revising. VW is also taking action against the judgment. The carmaker doesn't want to pay at all. Now the 6th BGH civil senate has to decide. No verdict is expected on Tuesday.
THE ARGUMENTS
Like many diesel owners, Gilbert also argues: If he had known what software is in his vehicle, he would never have bought it. He wanted to have a clean car and believed in advertising. Now he feels deceived. The Koblenz Higher Regional Court agreed with him and saw VW's behavior as deliberate immoral damage. The car maker systematically deceived authorities, competitors and consumers to maximize its profit. And instead of an unrestrictedly registered vehicle, the buyer got a car that was threatened by an operating ban and decommissioning. "No buyer would have concluded this contract if he had known what the imponderables were," says lawyer Alexander Voigt from the Potsdam law firm Goldenstein & Partner, which Gilbert claims to represent around 21,000 other VW owners in other proceedings.
VW sees it quite differently: The vehicle was fully usable at all times, so there was no damage that had to be replaced. There was also no loss of value due to the software, and should a defect or damage have arisen, then that was in any case corrected with the software update.
The carmaker also sees a special feature in the fact that it is a used car. VW was not involved in the sale at all, so could not have fooled the customer. The group also received nothing from the purchase price. Voigt, however, argues that the deception is that VW has made everyone believe that the vehicles are okay and there is no threat of decommissioning. He therefore does not consider it relevant whether it is a new or used car.
THE CONSEQUENCES
With their judgments, the top German civil judges usually set the line on which lower instances then orient themselves. In the VW diesel scandal in particular, there can be no talk of uniform decisions. Above all, the answer to the fundamental question of whether VW owes car buyers damage due to deliberate immoral damage is important. Because even this has been viewed very differently by the courts due to the lack of a fundamental judgment.
The so-called replacement of use, i.e. the deduction of part of the purchase price for a refund, is also a central point of the current case. In addition, there are countless details, the meaning of which the BGH will probably clarify gradually in the course of further proceedings: the time of the car purchase before or after the diesel scandal became known, possible limitation periods, software update yes or no, the mileage of the vehicles or the Ask about interest on the purchase price.
So far, the BGH has only commented on the diesel scandal at VW. At the beginning of 2019, another Senate stated in a so-called notice resolution that a material defect could be seen in an impermissible exhaust technology. However, it was about the purchase law and not a claim for damages.
The BGH has already scheduled three further claims for damages, each with a different set of cases, for July. In addition, a six-figure number of other cases is now with the responsible 6th Civil Senate. The final word on the diesel scandal at VW will therefore still not be spoken at the BGH.
