Background
The plaintiff purchased a used Audi A4 Avant equipped with a 3.0 TDI diesel engine (Euro 6 emissions standard) in October 2016 from a third party. Unknown to the plaintiff, the vehicle contained an illegal shut-off device that reduced emissions controls during normal driving conditions, in violation of EU Regulation (EC) No. 715/2007 and the German Implementation Regulation (EG-FGV).
The plaintiff sued the defendant (the vehicle manufacturer) for damages, seeking to be made whole as if the purchase contract had never been concluded—effectively a full refund adjusted for use. The claim was rejected in both the trial court (Ingolstadt, February 8, 2022) and the appeals court (Munich, February 22, 2023), with the lower courts finding insufficient evidence of intentional misconduct or illegal conduct by the defendant.
The Court’s Holding
The Federal Court of Justice reversed and remanded the case. The BGH held that the appeals court erred by failing to consider the plaintiff’s potential claim for damages under § 823(2) of the German Civil Code (BGB) in conjunction with §§ 6(1) and 27(1) of the German Implementation of the EU Vehicle Regulation (EG-FGV). The BGH determined that these regulatory provisions are “protective laws” under German tort law designed to protect vehicle purchasers’ interests against manufacturers, and that violations can trigger liability for damages.
Critically, the BGH clarified that the plaintiff is not entitled to “large damages” (großen Schadensersatzes)—which would place him in the position of never having made the purchase—but may claim compensation for the price differential damage (Differenzschaden). This reflects the actual harm: the vehicle cost what it would cost without the illegal device, yet contains that device, reducing its true value. The appeals court must now allow the plaintiff to present evidence of this value differential and determine whether the defendant bears tortious liability for at least negligently installing the illegal shut-off device.
Key Takeaways
- Illegal shut-off devices in vehicles violate EU emissions regulations that qualify as “protective laws” under German tort doctrine, potentially creating manufacturer liability.
- Vehicle purchasers may recover damages equal to the price differential—the gap between purchase price and actual vehicle value—rather than full contract rescission.
- The defendant’s liability may rest on negligence alone; intentional misconduct need not be proven for a claim under § 823(2) BGB.
- Lower courts must affirmatively consider and apply principles established in BGH precedent concerning emissions-device defects and must give plaintiffs the opportunity to present evidence of damages.
Why It Matters
This decision advances consumer protection in vehicle sales by establishing a clearer pathway for purchasers harmed by illegal emissions devices. While stopping short of full rescission remedies, the BGH affirms that EU regulatory violations trigger German tort liability and that damages are available to compensate for the true loss—what a buyer overpaid for a defective product. This aligns with the BGH’s June 2023 decision in VIa ZR 335/21 and clarifies the applicable legal standard across the appellate courts.
The ruling has practical significance for the thousands of German consumers affected by diesel emissions scandals: it provides a concrete damages theory (price differential) that does not require proving intentional fraud yet holds manufacturers accountable for regulatory violations. By remanding for proper factual development, the BGH ensures plaintiffs receive a fair hearing on the remedy to which the law entitles them.