Daimler suffered another bankruptcy in the emissions scandal. According to a ruling by the Bayreuth Regional Court on November 30, 2020, Daimler has to take back a Mercedes GLK 220 CDI and reimburse the purchase price less compensation for use for around 60,000 kilometers (Ref .: 41 O 465/20). Mercedes not only has to reimburse the damage in the amount of almost 30,000, but also the costs for the legal fees in the out-of-court proceedings.
Schwering Rechtsanwälte won the ruling. Attorney Andreas Schwering .: “Daimler did not want to put the cards on the table and only presented the court with largely blackened and therefore not very meaningful documents from the correspondence with the Federal Motor Transport Authority. Daimler cannot refute the accusation of an inadmissible defeat device. Even the courts no longer play their part. The LG Bayreuth consequently sentenced Bayreuth to compensation. “
First voluntary software update, then recall of the KBA
The plaintiff in the case had bought a Mercedes GLK 220 CDI with the OM 651 diesel engine as a used car for 39,500 euros. As part of a measure coordinated with the Federal Motor Transport Authority, Daimler updated the vehicle’s engine control software. Spicy: For vehicles of this type on which the update was not installed, the Federal Motor Transport Authority (KBA) ordered a mandatory recall in June 2019 due to an inadmissible defeat device.
Even if the update was installed in the plaintiff’s vehicle, she asserted claims for damages because of an inadmissible cut-off device, among other things, a test stand detection and a thermal window for exhaust gas recirculation are used in the model.
Daimler saw himself off the hook. As a result of the voluntary update, the vehicle does not have any of the functions complained about by the KBA. The automaker did not get away with this at Bayreuth LG. For immoral damage, the decisive factor is the nature of the vehicle at the time of purchase – and no software update had yet been installed, according to the court.
Adequate reference points for impermissible defeat devices
The plaintiff, on the other hand, provided sufficiently tangible evidence that an inadmissible defeat device was present. This is also supported by Daimler’s admission that the applicant’s vehicle would have been affected by the KBA’s recall without an update.
Daimler was also unable to refute the allegation of an inadmissible defeat device. Despite a clear request from the court, the car manufacturer did not submit any meaningful documents regarding the recall notice from the KBA and the release of the update, but only documents that were largely blackened with reference to trade and business secrets. That was not enough for the court. Properties that led to the recall could not be legally protected from any point of view, according to the court.
The fact that Daimler refuses to submit meaningful documents suggests that they contain information about an inadmissible defeat device. The submission of the plaintiff regarding the existence of an inadmissible defeat device should therefore be assessed as correct, the court continued.
Comparable to the VW exhaust scandal in the EA 189
The optimization of nitrogen oxide emissions on the test bench while emissions in normal road traffic are rising again is comparable to the inadmissible shutdown device for the EA 189 engine known from the VW exhaust scandal and is obliged to pay damages. Accordingly, Daimler was also obliged to pay compensation, decided the Bayreuth Regional Court. The purchase contract is therefore to be reversed. If the vehicle is returned, Daimler must reimburse the purchase price. After deducting a usage fee for the kilometers driven, the plaintiff still receives around 29,200 euros.
“The case law in the Mercedes exhaust scandal is becoming increasingly consumer-friendly. Most recently, two higher regional courts, the OLG Naumburg and OLG Cologne, sentenced Daimler to compensation and did not allow the appeal to the BGH. The judgments are groundbreaking and the prospect of enforcing damages continues to rise, ”says lawyer Schwering.
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