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„A bang“ at the ECJ: The new judgment considerably expands the liability of manufacturers

The highest court of the European Union, the European Court of Justice ("ECJ"), has ruled in its current judgment of March 21, 2023 (Case No. C-100/21) that buyers may have a claim for damages even if manufacturers have only acted negligently in using an unauthorized defeat device installed in the vehicle, meaning that they are only slightly at fault. With this ruling, the ECJ contradicts the previous national case law of the German Federal Court of Justice ("BGH") vehemently (landmark ruling from May 2020). The ruling has far-reaching consequences and could open up a whole new world of possible claims for damages - even beyond the "Diesel complex".


The plaintiff is the buyer of a used Mercedes-Benz passenger car whose engine contains a so-called "thermal window". This thermal window is used in exhaust gas purification. It ensures that exhaust gas recirculation is reduced (only, but not continuously) at certain temperatures. The purchaser asserted claims for damages due to the use of an alleged so-called impermissible defeat device - the basic problem is already known to many from the Diesel issue. Based on the fact that a thermal window is basically (also) intended to protect the engine of the vehicle (according to the arguments of the manufacturers), the BGH had previously rejected claims for damages on the grounds that manufacturers could not prove the "intentional immoral damage" required by law. And this was followed by almost all higher regional courts in Germany.

The decision of the ECJ

Although the ECJ did not answer the question of whether the thermal window is an "illegal" defeat device, it did lower - in a very consumer-friendly manner - the "hurdles for asserting successful claims" against manufacturers.

The ECJ now ruled that it is not necessary to focus on "intentional immoral damage" at all, and that buyers of Diesel vehicles with so-called thermal window defeat devices can also base their claims for damages on the "violation of a protective law" (nationally: on Section 823 (2) of the German Civil Code, "BGB"). In the view of the ECJ judges, EU law, in this case the type approval regulations, also protects the individual interests of the individual purchaser of a vehicle against its manufacturer. These are therefore so-called "protective laws". Accordingly, violations of the ban on unauthorized defeat devices can lead to damages even in the case of simple negligence on the part of the manufacturer.

Notes for practice

The BGH has so far always denied that the EU regulations on type approval protect third parties and has consistently rejected claims based on Section 823 (2) BGB. The ECJ decision could lead to a fundamental change in legal interpretation, with far-reaching consequences for many thousands of pending lawsuits for damages. With a view to the ECJ proceedings, the BGH had postponed a Diesel case until May 8, 2023, and a number of proceedings in the lower courts were also postponed in order to await the ECJ ruling for the time being. Manufacturers now have to fear that they will lose out in damage claims that are already pending. In addition, almost all Diesel manufacturers use such temperature-related defeat devices and a new wave of lawsuits can therefore be expected, although questions of the statute of limitations need to be carefully examined in advance in each individual case, especially if claims are not asserted until 2023.

It should be emphasized that this extension of the tortious liability of manufacturers by the ECJ does not only affect vehicle manufacturers. In addition to the immediate consequences for the Diesel cases, this "with a bang" ruling therefore also has the potential to fundamentally change German substantive tort law.

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