Background
In April 2020 the claimant purchased on credit, from the first defendant (a dealer), a used Malibu Van 600 Charming motorhome. The vehicle is built on a Fiat Ducato base chassis manufactured by the second defendant (Fiat’s manufacturer entity), fitted with a 2.3-litre Multijet diesel engine (type designation “F1AGL411C”, rated at 110 kW, Euro 6 emission standard). The claimant alleged that the vehicle was equipped with an unlawful emissions defeat device — specifically a “timer” function that shuts off exhaust-gas treatment after approximately 22 minutes of operation — and brought a damages claim against the manufacturer under § 823(2) of the Civil Code (BGB) read together with §§ 6(1) and 27(1) of the EC Vehicle Type-Approval Regulation (EG-FGV).
The claimant sought repayment of the purchase price plus interest, less a use-of-vehicle deduction, release from the loan obligations, a declaratory judgment on the manufacturer’s liability for further losses, a finding of the manufacturer’s default in acceptance, and reimbursement of pre-litigation legal costs. Both the Regional Court (Landgericht Leipzig, 1 September 2022) and the Higher Regional Court (Oberlandesgericht Dresden, 6 February 2023, corrected 23 February 2023) rejected the claim in its entirety. The OLG Dresden refused to admit the appeal on the merits, prompting the claimant to file a complaint against that refusal (Nichtzulassungsbeschwerde) with the Federal Court of Justice.
In dismissing the claim the OLG Dresden rested on two grounds: first, that the claimant had not sufficiently substantiated his standing to sue (Aktivlegitimation) because he had not proven ownership of the vehicle; and second, that he had not adequately pleaded that his particular vehicle was in fact equipped with a timer-based defeat device.
The Court’s Holding
The Federal Court of Justice (BGH) allowed the non-admission complaint and, pursuant to § 544(9) of the Code of Civil Procedure (ZPO), set aside the OLG Dresden’s decision insofar as it ruled against the claimant in relation to the second defendant, remitting the case for fresh hearing and decision — including on costs — to the court of appeal. The BGH held that the OLG Dresden had violated the claimant’s constitutionally guaranteed right to be heard (Art. 103(1) Basic Law) in two decisive respects.
On standing, the claimant had expressly clarified in his response to the appellate court’s preliminary notice that he was not pursuing claims that required ownership of the vehicle but rather claims arising from the conclusion of the purchase contract itself, which he regarded as detrimental. The OLG Dresden simply reproduced its earlier remarks about insufficient proof of ownership without engaging at all with this clarification, an omission the BGH found explicable only as a failure to take the submission into account.
On the defeat device, the claimant had pointed to: (i) the conformity certificate for his vehicle specifying engine type “F1AGL411C”; (ii) a Federal Motor Transport Authority (Kraftfahrt-Bundesamt, KBA) memorandum of 25 September 2018 concerning a Fiat Ducato with the same engine type; (iii) a KBA letter of 8 May 2020 confirming that Fiat Ducato 2.3-litre 110 kW Euro 6 diesel vehicles were equipped with the timer function he described; and (iv) a software expert report from parallel proceedings concluding that vehicles bearing the engine designation “F1AGL411C” were affected. The OLG Dresden failed to consider any of these items, did not address the match between the engine type designation in the claimant’s conformity certificate and that identified in the software report, and instead focused on the designation “Fiat Ducato 35L” used in the purchase contract without examining whether that label was technically accurate or noting that the vehicle data in the contract (displacement and power output) corresponded to the Euro 6 Fiat Ducato model addressed in the KBA letter. The BGH found that these failures were decisive, because had the appellate court considered the claimant’s submissions, it could not be ruled out that it would have affirmed both standing and the elements of a damages claim under § 823(2) BGB in conjunction with §§ 6(1), 27(1) EG-FGV.
Key Takeaways
- A German appellate court violates Art. 103(1) of the Basic Law when it ignores a party’s express clarification of the legal basis of its standing and simply repeats an earlier objection without engagement.
- In diesel defeat-device litigation a claimant adequately pleads the presence of a timer-based shutdown by producing the vehicle’s conformity certificate together with official KBA correspondence and an expert software report that together identify the same engine type — it is not sufficient for a court to dismiss that evidence by focusing on a different commercial label used in the sales contract.
- Where such procedural errors are outcome-determinative, the BGH will set aside a non-admission decision under § 544(9) ZPO and remit for a fresh merits hearing without itself deciding the case.
- The BGH confirmed that claims in the diesel emissions context do not necessarily require the claimant to be the registered owner; claims arising from conclusion of the purchase contract itself (contractual-harm basis) may confer standing independently of ownership.
Why It Matters
This decision reinforces the BGH’s consistent line — running through its 6a. Zivilsenat diesel-emissions jurisprudence — that lower courts must genuinely engage with the specific documentary evidence claimants produce in defeat-device cases rather than dismissing their pleadings on formulaic grounds. Attorneys advising vehicle manufacturers can expect that KBA correspondence identifying an engine type, a matching conformity certificate, and corroborating expert evidence from parallel proceedings will together cross the substantiation threshold as a matter of procedural law.
More broadly, the ruling is a reminder that the constitutional guarantee of a hearing (rechtliches Gehör) operates as a substantive constraint on how appellate courts may dispose of non-admission decisions. Silence in the reasons on a party’s core submission — particularly one that directly rebuts the court’s own preliminary objection — will be treated as a deemed failure to consider it, with the consequence that the BGH will reverse and remit rather than affirm on any alternative ground.