DE: Government liability denied in diesel scandal

Apr 22, 2022 Benn-Ibler Rechtsanwälte

The Federal Republic of Germany is not liable in the context of the "diesel scandal" for any defective application and implementation of EU law.

In the present case, the plaintiff claims official liability against the defendant Federal Republic of Germany in connection with the purchase of a motor vehicle equipped with an impermissible deactivation device for exhaust gas purification. The plaintiff acquired a used Audi A4 in 2014. The vehicle is equipped with a type EA 189 diesel engine. He accuses the defendant in particular of having granted a defective type approval for the vehicle type at issue here through its competent type approval authority, the Federal Motor Transport Authority (Kraftfahrtbundesamt), of having inadequately implemented Article 46 of Directive 46/2007/EC and of having failed to enact a sufficient system of sanctions. Due to these breaches of duty, the plaintiff had been persuaded to conclude the purchase contract, which he would not have concluded otherwise. The German Federal Supreme Court (Bundesgerichtshof, BGH) now denied such an official liability claim.

The state liability claim under Union law requires a direct connection between the violation of the standard and the damage claimed. Damage that does not fall within the scope of protection of the violated Union law is not compensable. The standards at issue here do not aim at protecting against the damages claimed by the plaintiff.

Although the standards protect consumers' interests, they are not intended to protect the damage alleged by the plaintiff here. The protective purpose of the Directive does not extend to the economic self-determination of vehicle buyers. The standards only have a third party protective effect with regard to the interest of the purchaser that the vehicle be authorised for use in road traffic and that this not be prohibited due to a lack of conformity with the approved vehicle type. But it is precisely this infringement of interest that the plaintiff does not assert.

Nor can anything different follow from the fact that aforementioned decisions established a claim against the vehicle manufacturers. The duties of the approval authorities do not go beyond the duties of the manufacturers.

BGH, III ZR 87/2 (10.02.2022)