Dieselgate: German BGH on Engine Manufacturers’ Liability

Aug 4, 2023 Benn-Ibler Rechtsanwälte

Engine manufacturers are not liable for vehicles equipped with illegal defeat devices. This has been ruled by the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH). Liability can only be established if the engine manufacturer has acted in a deliberate and immoral manner or has intentionally aided and abetted the vehicle manufacturer in placing a vehicle with a defeat device on the market.

The plaintiff had purchased a second-hand motor vehicle with an Audi engine from a car dealer in the year 2019. The vehicle had already been recalled by the German Federal Motor Transport Authority (Kraftfahrt-Bundesamt) due to an illegal defeat device having been installed. The buyer then claimed damages from Audi as the engine manufacturer, which is not the vehicle manufacturer, for having used an illegal defeat device. The regional court ruled in favour of the buyer, and the court of appeal ruled in favour of the engine manufacturer.

The German BGH now also rejected the appeal lodged by the buyer.

The engine manufacturer had neither intentionally caused immoral damage nor had the manufacturer intentionally aided and abetted the vehicle manufacturer in intentionally placing the vehicle on the market with an incorrect certificate of conformity (in this case with regard to the installation of a thermal window).

The European Court of Justice linked the claim against the vehicle manufacturer for compensation for the difference in the damage in the diesel cases to the fact that the manufacturer had issued an incorrect certificate of conformity.

However, the specific obligation to issue a certificate of conformity in line with the requirements of EU legislation applies only to vehicle manufacturers and not to the engine manufacturers.

Therefore, precisely because the engine manufacturer does not issue a certificate of conformity, the engine manufacturer cannot, according to the general principles of German law of torts, which are not affected by EU law, be an accomplice to a wilful act of the vehicle manufacturer, nor an accomplice to the vehicle manufacturer, because the engine manufacturer does not have the special duty required for issuing certificates of conformity.

Press release No. 107/2023 on BGH VIa ZR 1119/22 (10 July 2023)