With its judgment of December 17, 2020, the European Court of Justice (ECJ, Az. C 693-18) made it clear that manufacturers violate the ban on defeat devices in numerous cases. According to the ECJ, shutdown devices are only permitted within narrow limits. According to this, manufacturers such as Volkswagen, Audi and Daimler cannot justify the cut-off devices in diesel vehicles – as previously regularly stated – by protecting the engine from wear and soiling. According to the ECJ, a defeat device is only permitted if it serves to protect against sudden and extraordinary damage.
Manufacturers regularly overstretch exemption regulations
The ECJ finds clear words in its judgment. The relevant regulation aims to improve air quality. As a result, the exception regulation may not repeal the prohibition of the defeat device regulated for this purpose. However, this is the case if manufacturers were entitled to justify disconnection devices with the contamination or wear and tear of the engine. The goal of improving air quality would be insubstantial. In doing so, the ECJ is removing the basis for the manufacturers’ arguments. These regularly refer to long-term disadvantages in order to justify shutdown devices such as the so-called “thermal window”. But in doing so, the manufacturers have regularly exceeded their legal leeway.
What consequences does the judgment have for litigation against diesel buyers?
With the judgment of the European Court of Justice, the courts will in many cases have to come to the conclusion that defeat devices are inadmissible, i.e. prohibited, in numerous vehicles. In other words, the buyer basically has warranty rights against the seller. If the seller has knowingly concealed the defeat device, the buyer has the immediate right to withdraw from the purchase contract. He can reverse the purchase without referring to a software update.
If the manufacturer is not also the seller, the decisive factor is whether the manufacturer acted immorally. This is the case if the manufacturer has deliberately deceived the Federal Motor Transport Authority (KBA) and thus also the buyer. Then the manufacturer is directly liable to the buyer. The manufacturers will continue to justify themselves by stating that they (mistakenly) considered their actions to be legal. However, the manufacturers must be asked why they did not disclose the defeat device and limit value violations in the approval process at the KBA. Recalls speak for a deliberate legal violation by the manufacturer.
If you have any questions, attorney Philipp Neumann (law firm 2vier2 in Frankfurt am Main) is available on 069-770394690 or by email at [email protected]. Lawyer Philipp Neumann is a specialist lawyer for banking and capital markets law and has been involved in litigation for over 15 years and has represented injured parties (shareholders and car buyers) in the emissions scandal since 2016.
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