VW owes non-contractual damages to the purchasers of vehicles with the motor EA 189

The Volkswagen AG owes non-contractual damages to the purchasers of vehicles in connection with the emission scandal based on the claim of intentional damage contrary to public policy. If the purchaser demands refunding of the purchase price, the refunded amount is diminished by the reduction of the vehicle’s value (adjustment of profit). The amount of the reduction is, according to the court decision, to be established by expert opinion.

No: 56/2019

In May 2009, the plaintiff had bought a VW Tiguan 2.0 l TDI. The vehicle is equipped with a diesel motor of the series EA 189 EU 5. With reference to the so-called diesel scandal, the plaintiff claimed compensation from VW AG by repayment of the purchase price in return for the vehicle. The Regional Court (LG) Hanau had dismissed the action. The plaintiff launched an appeal against this decision.

The Higher Regional Court (OLG) issued the decision to raise further evidence by expert opinion. In its decision, the Senate held that the VW AG owes contractual damages to the plaintiff according to section 826 of the German Civil Code (BGB) (intentional damage contrary to public policy).

According to the Senate, the technical development and the commercial selling of a vehicle with a so-called defeat device by VW constituted an action contrary to public policy. The defeat device was intended to secure an EU type approval. Technical manipulations by such devices with the aim of feigning the compliance with legal requirements under public law are to be considered as a damage to a third party. It was evident that the defeat device endangered the granting of the operation licence and was used by VW with full knowledge regarding the negative consequences for the purchasers of the vehicles.

The Senate held that the plaintiff suffered a financial loss by paying the purchase price for a vehicle containing a defeat device which endangered its operating licence. The date of the purchase is relevant for the calculation of the damage which therefore cannot be retrospectively compensated by a software update installed by VW.

The legal provisions on the type approval also cover, by their scope of protection and their rational logic, agreements regarding the selling of the vehicles concerned.
The defendant could not rely with bona fide on a positive result of the type approval, which constituted a willful misconduct. To that regard, VW is liable for the individual actions of its board members.
According to the Senate, the plaintiff has in principle the right to receive repayment in return for the vehicle. The facts do, however, not yet constitute a basis for a final decision by the Court. By a necessary adjustment of damages, the amount to be repayed is reduced by the loss in value of the vehicle which was caused by its regular use and which would also have been effected regarding a vehicle without such a defeat device. The exact amount (here concerning a mileage of 135.000 km) is to be established by an expert opinion.

The decision is final.

Higher Regional Court (OLG) Frankfurt/Main, decision of 25 September 2019, 17 U 45/19
(first instance judgement: Regional Court (LG) Hanau, judgement of 22 November 2018, 4 O 1315/17)

The full text of the decision will soon be available at www.lareda.hessenrecht.hessen.de

Further information:

Section 826 of the German Civil Code (BGB) (Intentional damage contrary to public policy)

A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.

English version: Dr. Charlotte Rau

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