DE: Federal Court of Justice on VW Emissions Scandal Limitations

Aug 19, 2022 Benn-Ibler Rechtsanwälte

Diesel plaintiffs can only hope to receive money in a time-barred claim for damages if their vehicle is a new VW. In the case of other makes with VW engines, there is no claim for so-called compensation for any residual damages, according to the German Federal Court of Justice (Bundesgerichtshof, BGH).

In the present case, the plaintiff filed a claim against VW due to the use of an illegal 'defeat device'. The plaintiff claimed, among other things, reimbursement of the purchase price of her new Audi made by Audi AG with a VW engine, which she purchased in December 2011. The plaintiff claimed that it was not until she received a letter from Audi AG in January 2017 that she learned that the vehicle purchased by her was impacted by the so-called VW emissions scandal. The defendant thereupon appealed to the statute of limitations.

According to the Federal Court of Justice, the claim for damages asserted in tort is time-barred. The court of appeal had previously erred in law in assuming that the plaintiff had not acquired the required knowledge without gross negligence, which is crucial for the start of the limitation period, until 2017. At the latest by the end of 2016, the buyer was under the obligation to verify whether her car was affected by the diesel scandal. According to the German Federal Court of Justice, this failure to verify constituted gross negligence.

The plaintiff's alternative claim for residual damages pursuant to Section 852 S1 of the German Civil Code likewise does not result in any liability. The precondition for this is that the defendant (VW) has not gained any advantage in relation to the plaintiff from the sale of the vehicle (i.e., by Audi AG to the plaintiff). In the present constellation, VW has, at most, gained a financial advantage with the manufacturing of the engines and their sale to Audi, but not through the subsequent sale by Audi AG to the plaintiff. According to the BGH, “the conclusion of the contract on the purchase of the vehicle between the injured party and the vehicle dealer, which gave rise to the claim, on the one hand, and a possible advantage of the defendant from the internal hand-over of the vehicle engine to the vehicle manufacturer, on the other hand, are not based on the same and not even an indirect transfer of assets as the claim presupposes”.

Press release No. 108/2022, BGH, VII ZR 422/21 (14 July 2022)