9. June 2021

Foreigners can sue in Germany in the diesel emissions scandal

Almost 6 years ago, the diesel scandal was uncovered in Germany. In the meantime, numerous diesel vehicles from the following manufacturers have been affected worldwide: VW, Audi, Mercedes-Benz, Opel, Porsche, Seat and Skoda.

Some buyers can no longer sue because their claims are time-barred. However, this does not apply to foreign claimants who bought their car abroad. Do you live abroad and bought your tampered car abroad? Then you should read this:

What rights do affected car owners have?

Extensive media coverage in Germany

On 18 September 2015, it was publicly announced in Germany as part of the so-called ad-hoc announcement that Volkswagen AG was using an illegal defeat device in the engine control of its diesel vehicles.

The VW Group informed the general public in the form of press releases from the end of September 2015 to mid-October 2015 that the EA 189 engine was equipped with a defeat device that was considered improper by the Federal Motor Transport Authority and therefore had to be removed. The public was also informed by the Federal Motor Transport Authority.

The diesel scandal was simultaneously the subject of very extensive press coverage in Germany. The extensive media coverage still keeps the diesel scandal issue in mind today.

Rights of foreign vehicle buyers

In short: Affected owners of a manipulated diesel vehicle can assert their rights both in the context of a reversal under warranty law and by way of tortious liability.

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How long do affected vehicle owners generally have to assert their claims?

In order for the claims sought to be enforceable, they must be asserted within the limitation period.

The beginning of the regular limitation period is determined by Section 199 (1) of the German Civil Code (BGB):

(1) The regular limitation period begins, unless another commencement date is specified, at the end of the year in which the claim arose and the creditor becomes aware of the circumstances giving rise to the claim and of the person of the debtor or should have become aware without gross negligence.

According to § 195 BGB, the regular limitation period is three years.

According to the established case law of the Federal Court of Justice, knowledge within the meaning of § 199 (1) no. 1 BGB is present if it is possible for the aggrieved party to bring an action for damages, even if only in the form of an action for a declaratory judgment, with the prospect of success, even if not without risk.

§ Section 199 (1) no. 2 BGB, on the other hand, is based only on knowledge of the actual circumstances, i.e. the facts of life that form the basis of the claim.

When do claims in the diesel scandal in Germany become time-barred?

In its ruling of 17 December 2020 (Ref.: VI ZR 739/20), the Federal Supreme Court (BGH) ruled on the statute of limitations for claims of affected diesel drivers who had already purchased their vehicle before the ad-hoc notification:

In 2015, it had been reasonable for them to file a lawsuit based on what they knew about the actual course of events and to base it on the aforementioned allegations.

For at that time, affected persons knew that their vehicle was one of the vehicles manipulated in the emissions scandal.

According to the above, claims of the affected vehicle owners are in principle time-barred as of the end of 2018. The BGH considers the ad-hoc notification to be objectively suitable to destroy the confidence of potential buyers of used cars with VW diesel engines in an exhaust technology that complies with the regulations, i.e. to eliminate guile in this respect.

It was no longer to be expected that buyers of VW vehicles with diesel engines would take conformity with the law for granted.

The three-year limitation period would then still give the injured parties sufficient opportunities to obtain a more secure basis for further action, especially with regard to the provability of the claim.

This case law does NOT apply to foreigners!

No compensation in Germany for vehicle purchase after publicised diesel scandal?

In its ruling of 30.07.2020 (Ref.: VI ZR 5/20), the BGH decided: No compensation for damages in case of vehicle purchase after publicised diesel scandal: Consumers who purchased their vehicle in Germany only after the diesel scandal became known were no longer in bad faith. They bought a vehicle with knowledge of the emissions manipulation.

In a required overall consideration, the conduct of the car manufacturer in concluding sales contracts after the ad-hoc notification can no longer be equated with deception. Material circumstances on the basis of which the conduct towards earlier buyers was to be considered reprehensible had already ceased to exist in autumn 2015.

Still suing on the diesel scandal as a foreigner?

It cannot automatically be assumed that the claims of affected foreign vehicle owners who bought their vehicle abroad are also time-barred at the end of 2018.

Such extensive media coverage of the diesel scandal has only taken place in Germany. The coverage was not comparably intensive in neighbouring countries.

The confidence of potential foreign buyers abroad in the compliant exhaust technology of the diesel engines could not have been destroyed by the ad-hoc announcement in Germany on 18 September 2015.

The same applies to manipulated vehicles that were only purchased after the diesel scandal became known.

In January 2021, the Düsseldorf Higher Regional Court had to rule on a case in which a Turkish citizen bought a vehicle affected by the diesel scandal in Turkey in 2019.

The plaintiff now sought the reversal of the purchase contract.

The Higher Regional Court did not refer the plaintiff to the case law of the Federal Supreme Court that there was no longer any immorality at the time of the sale.

The extensive media coverage and communication had only referred to Germany.

The Higher Regional Court affirmed claims for damages despite the late purchase.

Use this case law to your advantage.

Recommendation: All foreigners can still sue

If you, as a foreigner, have also purchased your vehicle abroad, have a competent lawyer check whether your vehicle is affected by the diesel scandal.

We will assert your claims for you in and out of court!

This is particularly promising in view of the expected ruling by the Düsseldorf Higher Regional Court.

Do not hesitate to contact us free of charge and without obligation.

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Do you have a question, would you like to make an appointment or use our telephone service? Get in touch with us now.

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