Germany: No Claim Extension in Appeals

Aug 5, 2022 Benn-Ibler Rechtsanwälte

Changing the matter in litigation during appeal proceedings in order to increase the likelihood of success of the action is not permissible. According to the German Federal Supreme Court (Bundesgerichtshof, BGH), such a change would affect the interests of the party being sued, who is entitled to know exactly which procedural claims are being brought against them, in order to be able to prepare legal defence accordingly.

In the case at hand, the plaintiff had filed a claim for damages against the defendant, a vehicle manufacturer, due to an illegal deactivation device having been installed for exhaust gas recirculation (the VW Diesel Emissions Scandal). In December 2015, the plaintiff privately purchased a used VW Golf outfitted with such an illegal deactivation device by a third party. The plaintiff later had a software update installed that remedied the defect, but was nevertheless of the opinion that the emissions manipulation software was still active. The plaintiff therefore demanded payment of a mitigation sum and issuance of a written confirmation stating that the defendant was under obligation to compensate the buyer for all damages resulting from the installation of the manipulation software or any retrofitting of the vehicle.

The German Federal Supreme Court (BGH) instead held that the fact that the buyer was now, for the first time, asserting contractual claims in the appeal, constituted an inadmissible extension of the complaint.

In general, the subject matter of a dispute, the procedural claim, is determined by the motion proper. The court is required to comprehensively examine the facts of the matter presented in order to determine whether a claim is well-founded. In doing so, however, the court must observe the limits of the cause of action presented by the plaintiff.

If the plaintiff now, as in the case at hand, asserts claims arising from the software update in addition to tortious claims, for the first time, in the appeal proceedings, this claim is not linked to the initial purchase, according to the German Federal Court of Justice.

According to the German Federal Supreme Court, it is crucial for the protection of the defendant that a plaintiff make it clear beyond any doubt which new procedural claim they are pursuing when introducing an additional subject matter into the proceedings. It must be obvious to the defendant which claims are being raised against them in order to be able to direct their legal defence accordingly. A mere new material presentation is not sufficient, according to the court.

BGH (German Federal Supreme Court), VI ZR 804/20 (31.05.2022)