Background
In June 2016, the plaintiff purchased a new Mercedes-Benz C 250d from the defendant with a diesel engine (OM 651, Euro 6 emissions class). The vehicle carried a certificate of conformity confirming compliance with EU emissions regulations. The plaintiff later discovered that the vehicle contained an illegal defeat device—an impermissible shut-off mechanism that violated Article 5(2) of EU Regulation (EC) No. 715/2007. The plaintiff sued for damages, seeking to be placed in the position he would have occupied had he not entered into the purchase contract.
The trial court dismissed the claim, and the Court of Appeals (Brandenburgisches Oberlandesgericht) rejected the plaintiff’s appeal. The Court of Appeals found no liability under either intentional tort provisions (§§ 826, 31 BGB) or protective statute law (§ 823(2) BGB). The plaintiff appealed to the Federal Court of Justice.
The Court’s Holding
The BGH partially reversed the lower courts. The Court affirmed the dismissal of the plaintiff’s claim for “gross damages” (full rescission of the purchase), finding that the intentional tort claim lacked merit. However, the Court held that the Court of Appeals erred in rejecting liability under § 823(2) BGB read together with § 6(1) and § 27(1) of the EU Vehicle General Safety Regulation (EG-FGV). These provisions constitute protective statutes within the meaning of § 823(2) BGB, designed to safeguard vehicle buyers against manufacturers.
Critically, the BGH found that the plaintiff may have a valid claim for “difference damage”—compensation equal to the loss in the vehicle’s market value resulting from the illegal defeat device. The Court noted that while the plaintiff is not entitled to rescind the entire purchase contract, he may recover the difference between what he paid and what the vehicle is actually worth given its non-compliant status. The lower court had never addressed this remedy because it rejected the underlying liability theory. The case was remanded for the Court of Appeals to receive evidence on the quantum of difference damage and make necessary findings of fact regarding the defendant’s negligent or intentional installation of the illegal device.
Key Takeaways
- Vehicle buyers harmed by illegal defeat devices have a damages remedy under German protective statute law, even if rescission is unavailable.
- Difference damage (loss of market value) is the appropriate measure, not full contract rescission.
- EU emissions regulations are enforceable through private tort claims when a manufacturer sells a non-conforming vehicle despite a conformity certificate.
- The defendant’s knowledge or intent is not required; at least negligence suffices for liability.
Why It Matters
This decision clarifies remedies for consumers deceived by illegal defeat devices—a category of claims that emerged from the global “dieselgate” scandal. While German courts have limited full rescission claims, the BGH establishes that difference damage claims proceed on protective statute grounds, giving buyers meaningful recourse without requiring proof of intentional fraud. The decision balances consumer protection with contractual finality.
For the automotive industry and regulators, the ruling reinforces that EU emissions standards are not merely administrative requirements but enforceable consumer protections, and that systematic non-compliance exposes manufacturers to cumulative damages liability. The decision will likely encourage similar litigation across the EU, particularly as other national courts consider parallel claims.