In the course of the diesel scandal, many car buyers sued Volkswagen and other car manufacturers for damages, also because of the use of so-called thermal windows. In this context, thermal window means that the exhaust gas cleaning only runs fully in a certain temperature range and is reduced or switched off completely outside of this "window".
Emission control must be "predominantly" active
From the point of view of the Court of Justice of the European Union (ECJ), such a thermal window is only permissible under strict conditions. And only if the defeat device is "exclusively necessary" to avoid damage to the engine or an accident and there was no other technical possibility for this. It is for the national courts to determine to what extent this is the case.
However, the ECJ added a big “but”: In any case, a defeat device that has to be active “for most of the year” to protect the engine from damage or an accident is inadmissible. According to the ECJ, the exhaust gas cleaning in the specific case was only complete between 15 and 33 degrees Celsius and below 1000 meters altitude. Outside of the range, it has been reduced. "The referring court points out that the temperature in Austria is below 15 degrees Celsius for most of the year."
VW: Low impact for the group
Volkswagen disagrees: exhaust gas cleaning is only reduced below ten degrees. The exhaust gas cleaning is "100 percent active for most of the year". From the group's point of view, the effects of the judgment on Volkswagen are therefore "minor". Volkswagen also sees its legal opinion confirmed by the judgment: "According to the criteria set out by the ECJ in its judgment, the thermal windows used in vehicles of the VW Group remain permissible. They protect against direct risks to the engine in the form of damage or accident. The risks are so serious that they constitute a real hazard when operating the vehicle."
The background to the judgment are claims for damages by customers from Austria. However, the decision of the ECJ is also binding for all other national courts. In Germany, too, there are numerous claims for damages pending from diesel customers, which are based on the use of thermal windows. To what extent they actually have claims has not yet been clarified with today's judgment. How good their chances are also depends on another ECJ judgment that is expected in the course of the year.
Another ECJ judgment could be important
In this procedure, the Advocate General of the ECJ published his opinion at the beginning of June, with which he makes a legal assessment. He sees two essential points differently than the German Federal Court of Justice in its previous case law. The Advocate General assumes that some of the EU emissions regulations are designed to protect third parties – meaning that they are also intended to protect the rights of diesel customers. As a result, car manufacturers would be liable even if they negligently violated emission standards. Previously, plaintiffs had to prove them immoral, which is much more difficult to prove, especially when installing thermal windows.
The Advocate General also commented on the extent of the damages. In Germany, those affected have to have a certain cent amount deducted from the amount of damages for every kilometer that they have driven in their car. In the case of frequent drivers, this can mean that nothing is left over from the compensation. From the point of view of the Advocate General, this is not compatible with EU law. The Court is not bound by the Opinion of the Advocate General. So he can decide differently. The Federal Court of Justice now wants to wait for the decision before continuing to negotiate the diesel case. And has called on the lower courts to do the same.