Background
The plaintiff purchased a used VW Passat Variant in March 2018 equipped with a diesel engine (EA 288, Euro 6 emissions class). He alleges the vehicle contained prohibited emissions defeat devices (Abschalteinrichtungen) and seeks damages in the form of restitution of the purchase price minus a use allowance, plus interest, as well as a finding that the seller is in acceptance delay and recovery of pre-litigation legal costs. In the alternative, he seeks a court-determined differential damage award.
The Regional Court (LG Osnabrück) rejected his claims in March 2022. The Higher Regional Court (OLG Oldenburg) upheld that decision in November 2023. The plaintiff then sought further review via a petition for admission to appeal (Nichtzulassungsbeschwerde).
The Court’s Holding
The BGH partially granted the plaintiff’s petition, finding that the appeals court violated his constitutional right to be heard under Article 103(1) of the German Basic Law when it rejected his claims regarding the “thermal window” (Thermofenster) defeat device. The court found that the appeals court set impermissibly strict evidentiary standards. When the existence of a thermal window is undisputed and the only disputed issue is the temperature range at which it operates, the plaintiff’s factual allegations are legally sufficient to establish an impermissible defeat device claim.
The plaintiff had alleged that the exhaust gas recirculation system in his vehicle was reduced “below an ambient temperature of +20°C and above an ambient temperature of +30°C.” The BGH determined that this allegation of reduced emissions control at temperatures outside the normal European driving range sufficiently establishes the existence of a prohibited defeat device under EU Regulation 715/2007, Article 3(10) and Article 5(2) Sentence 1. The court emphasized that detailed technical specifications about exact temperature parameters cannot be demanded when the defendant’s operation of the device is undisputed.
The case was remanded to the appeals court for reconsideration of the plaintiff’s claims and for determination of costs. The BGH declined to overturn the appeals court’s rejection of the plaintiff’s claims for “full” (großen) damages, finding no legal error warranting admission to appeal on those grounds.
Key Takeaways
- When a thermal window defeat device’s existence is undisputed, plaintiffs need only allege the temperature range at which emissions control is reduced, not detailed technical specifications
- Courts must comply with constitutional rights to be heard when evaluating factual allegations and cannot impose unreasonably strict pleading requirements
- A thermal window that reduces emissions controls outside normal operating temperatures (20–30°C ambient) constitutes a prohibited defeat device under EU law
- The decision applies prior BGH precedent (VIa ZR 347/22) clarifying evidentiary standards in defeat device litigation
Why It Matters
This decision clarifies evidentiary standards in ongoing VW emissions litigation, which has been a major issue since the 2015 “dieselgate” scandal. By requiring courts to accept allegations about thermal window operations without demanding detailed technical specifications, the BGH potentially makes it easier for plaintiffs to recover damages for vehicles with prohibited defeat devices. The decision reflects German courts’ strict compliance with constitutional procedural protections (the right to be heard) and their rigorous application of EU emissions regulations.
The ruling is significant for consumers and their attorneys pursuing emissions-related damages claims throughout the European Union. By reducing the technical burden required to prove that a thermal window constitutes a prohibited defeat device, the decision could have implications for ongoing and future litigation involving similar emissions control systems. It reinforces that courts cannot impose pleading requirements that effectively nullify statutory rights to damages.