September 16, 2021 – The German Federal Court of Justice (BGH) has already dealt several times with the temperature-dependent control of the exhaust gas recirculation system (so-called “thermal window”) in Mercedes-Benz vehicles. Germany’s highest court of civil jurisdiction has clarified that a so-called “thermal window” is not immoral (German: “sittenwidrig”) as such. That means: The existence of a “thermal window” alone does not justify damage claims on the basis of unconscionability.
Daimler welcomes the decisions by the BGH. In the company’s opinion, they serve as a precedent for thousands of similar legal proceedings in Germany.
You can find related press releases by BGH here (German language only):
- Decision of September 16, 2021: https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2021/2021173.html?nn=10690868
- Decision of July 13, 2021: https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2021/2021126.html?nn=10690868
- Decision of January 19, 2021 (VI ZR 433/19): https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2021/2021016.html?nn=15276914
What is this about?
The proceedings concern vehicles with OM 651 diesel engines of with the emission standard Euro 5. The plaintiffs considered the temperature-dependent control of the exhaust gas recirculation system (so-called “thermal window”) of the vehicles to be a defeat device. The plaintiffs see themselves deceived and therefore claim damages.
The lawsuits were unsuccessful in the lower instances at the Regional and Higher Regional Court (OLG) – the courts have each ruled in Daimler's favor. The respective vehicles were not part of a diesel recall ordered by the German Federal Motor Transport Authority (KBA).
What has the BGH decided?
The BGH has confirmed the decisions by the lower courts, and clarified that the temperature-dependent control of the exhaust gas recirculation system (so-called “thermal window”) is not immoral (German: “sittenwidrig”) as such. That means: The existence of a “thermal window” alone does not justify damage claims on the basis of unconscionability.
The applied temperature-dependent controls of the exhaust gas recirculation systems (so-called „thermal windows“) cannot be compared to the defeat device that was used by Volkswagen in the EA 189 engine: the controls used by Daimler do not distinguish whether a vehicle is on a test stand or in normal driving operation. In fact, under conditions that are in principle decisive for the test cycle, they operate in the same way on the road as on the test stand.
Daimler’s position in brief:
• We welcome the decisions by the German Federal Court of Justice (Bundesgerichtshof, BGH).
• The decisions serve as a precedent for thousands of similar legal proceedings in Germany.
• The BGH - Germany’s highest court of civil jurisdiction – has confirmed an important aspect of Daimler’s legal opinion: The temperature-dependent controls of the exhaust gas recirculation system (so-called “thermal window”) are not immoral (German: “sittenwidrig”) as such.
• The BGH rejected the law firm’s general argument, that an allegedly impermissible defeat device in the vehicles’ engine control systems alone justifies damages claims on the basis of unconscionability.
• From our point of view and from the point of view of many experts, so-called "thermal windows" are technically necessary and an industry standard, and have nothing to do with deception.
Why are the BGH’s rulings important?
As is well known, in Germany thousands of individual lawsuits are being filed with regard to diesel, also against Daimler. Behind this are very often law firms whose business model is geared towards mass diesel lawsuits.
The “thermal window” plays a key role in these law firms’ case in court because, as is well known, temperature-dependent exhaust gas recirculation control is used in many diesel vehicles by a variety of manufacturers. The law firms almost always point to the “thermal window” in order to prove an allegedly impermissible defeat device in the vehicles’ engine control systems in order to justify damage claims on the basis of unconscionability.
With this decisions, the BGH rejected general argument of the law firms.
Why did the BGH refer cases back to the respective higher regional courts?
The BGH referred some cases back to the respective higher regional courts (OLG) because in the opinion of the BGH, the courts have made procedural errors by not adequately clarifying a point in the plaintiff's submission.
Daimler assumes that the higher regional courts will again reject the lawsuit.
What’s next?
Daimler expects the decisions by the BGH to serve as a precedent for thousands of similar legal proceedings in Germany. It remains to be seen what position the BGH will take in other legal proceedings. Our position on the subject remains unchanged: We consider the claims to be unfounded and will defend ourselves against the allegations.
