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Photo: Hendrik Schmidt / dpa
A Volkswagen buyer who bought his car after the diesel scandal became known is not entitled to compensation for the software update - for example due to possible increased fuel consumption or wear and tear.
VW did not behave immorally, said the Federal Court of Justice (BGH) in an initial decision on such a case.
He rejected the complaint with which the plaintiff wanted to obtain approval of the appeal (Az. VI ZR 889/20).
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The plaintiff bought a used VW Tiguan with a diesel engine in September 2016.
A year earlier, VW had made public that the company was using an illegal defeat device on diesel cars.
It ensured that the emission control system only worked correctly on the test bench, but that the nitrogen oxide limit values were exceeded during normal driving on the road.
This also affected the plaintiff's Tiguan.
VW has changed its behavior according to the BGH
The Federal Motor Transport Authority had ordered VW to restore the compliance of such cars.
The company installed a software update, including on the plaintiff's car.
However, he complains that a new, impermissible shutdown device has been implemented: a thermal window that reduces the recirculation of exhaust gases at cool and very high temperatures.
The update has negative effects on fuel consumption and wear and tear.
He sued unsuccessfully for repayment of the purchase price before the regional court in Kaiserslautern.
The higher regional court in Zweibrücken also rejected his appeal;
nor did it permit any revision.
Thereupon the plaintiff turned to the BGH in order to obtain approval of the appeal.
The BGH examined the judgment and now rejected the plaintiff's request.
The appellate court rightly denied a claim for damages, it said.
VW has changed its behavior since the diesel scandal and the allegation of immorality is no longer justified.
Even if a thermal window were actually an impermissible shutdown device, its implementation would not be comparable to the use of the first test bench software.
Judgment has an impact on several thousand proceedings
In contrast to the original software, the use of a thermal window was "not shaped by malice from the start," said the court.
The software "does not" lead to "increased exhaust gas recirculation being activated in test bench operation and nitrogen oxide emissions being reduced compared to normal driving", but works "in principle in the same way in both driving situations".
The BGH left open whether the thermal window violated legal regulations - but even if it were, that would not be enough to qualify the defendant's overall behavior as immoral.
In any case, there are no indications that those involved in the development and use of the temperature-dependent control acted "in the knowledge that they were using an impermissible disconnection device and accepted the legal violation contained therein".
VW welcomed the decision.
You have an impact on thousands of pending lawsuits, said the manufacturer.
VW is assuming that these can now be ended quickly.
Icon: The mirror
ene / hip / AFP
