Apart from dieselgate, there was another conflict of interest between consumers and manufacturers of diesel cars, the so-called ‘thermal window’ software. For the first time, the German Federal Court (Bundesgerichtshof or BGH) has considered that customers, having bought a car with the device, can claim compensation.

The software permits controlling the air pollution equipment on diesel cars in the function of the outside temperature. The NOx filtering can be reduced or deactivated at temperatures below 15°C and above 33°C. The car manufacturers have always claimed this was necessary to protect the engines’ functionality.

On the contrary, environmental NGOs have always said that the device was a fraud destined to have better emission figures during testing (in laboratory circumstances) than during real driving on the road.

European rules

In March, the European Court of Justice (CJEU or CURIA) decided on the matter in favor of the consumers. Until now, the courts had always reasoned that there was no intention of fraud by the manufacturers in this case, just negligence. Now, the CJEU has considered negligence a legal argument for obtaining compensation.

According to the CJEU, it is up to the German legal instances to calculate the possible height of this compensation. In yesterday’s decision, the German Federal Court decided that this compensation had to be between 5 and 15% of the purchasing price of the vehicle.

Reactions

On Monday, there was already a reaction from Mercedes-Benz, involved in several similar law cases and complaints. The car manufacturer denies having acted with negligence, arguing that, until the European Court’s decision last March, the European authorities considered the ‘thermal window’ technique completely legal.

Claus Goldenstein, on the contrary, a lawyer representing some 50 000 complaints of consumers in different law cases, considers this decision the start of possible compensation for millions of consumers all over Europe.

And dieselgate?

Dieselgate is an entirely different case. Here, real software fraud to influence emission testing has been proved and admitted by the Volkswagen Group, which has already paid more than €30 billion in fines and compensations worldwide, but mainly in the US, where the ‘scandal’ broke in September 2015.

Today, the verdict is expected in the law case against several high-ranking managers (at that time) in the VW Group, the most important being Rupert Stadler, former CEO of Audi. After a while, all three admitted to committing the fraud to obtain lighter sentences. Initially, ten years of prison was asked.

For all three of them, the court has proposed suspended prison sentences of two years and fines varying between €50 000 and €400 000. The two other accused in this case were Wolfgang Hatz, an engineer at Porsche, and Giovanni Pamio, an Audi engineer. They both admitted to having installed fraud software in diesel engines.

In the case of Wolfgang Hatz, the prosecutor refused to follow the court’s proposal and asked for three years and two months of effective imprisonment. The Munich court’s decision will undoubtedly influence other cases hanging, notably in Brunswick (near the Wolfsburg headquarters of the VW Group), where four other high-ranking VW managers are awaiting trial and expected to be judged in 2024.

The most important absentee from this trial is the former Volkswagen CEO Martin Winterkorn, leading the Group in 2015. He has been dispensed from attending court for medical reasons. Dieselgate trials for compensation are still running in different European countries, mostly class action cases led by consumer organizations.