No Liability of the Federal Republic of Germany in the so-called Diesel Emissions Scandal for potentially insufficient Implementation and Application of European Law

Ausgabejahr 2022
Erscheinungsdatum 17.03.2022

Nr. 034/2022

Decision of 10 February 2022 - III ZR 87/21

The Third Civil Panel competent, amongst other matters, for official and state liability law has ruled that the purchaser of a motor vehicle equipped with a type EA 189 diesel engine is not entitled to official liability claims against the Federal Republic of Germany on grounds of potentially insufficient implementation of European law.

Facts and Circumstances:

On 12 September 2014 the plaintiff purchased a used motor vehicle “Audi A4” (mileage: 11,303 km) for a purchase price of 35,440.00 Euros. The vehicle is equipped with a type EA 189 diesel engine containing an illegal shut-off device. Above all, the plaintiff accuses the defendant Federal Republic of Germany that the Federal Motor Transport Authority (Kraftfahrtbundesamt) had issued a faulty type approval for the vehicle type in question and that the Federal Republic of Germany had insufficiently implemented article 46 of the Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Directive 2007/46/EC) and had failed to establish an adequate system of penalties. Due to these breaches of duty, the plaintiff had been caused to conclude the purchase contract he otherwise would not have concluded. Therefore, the defendant was under the obligation to pay compensation to the plaintiff.

Previous Proceedings:

The regional court has dismissed the action seeking a declaratory judgment on the defendant’s liability for damages. The appeal on facts and law lodged by the plaintiff to seek alternatively reimbursement of the purchase price contemporaneously against delivery and assignment of the vehicle and payment of a compensation for use has not been successful.

Ruling of the Federal Court of Justice:

The Federal Court of Justice has rejected the complaint directed against the appellate court’s refusal of leave to appeal on points of law.

Above all, the matter does not hold fundamental significance on the grounds that a preliminary ruling by the Court of Justice of the European Union would have to be requested regarding the question, if and (if so) to what extent the here relevant standards of the Directive 2007/46/EC and of the Regulation (EC) No. 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (Regulation (EC) No. 715/2007) serve the purpose of enabling the competent type-approval authorities to protect vehicle purchasers from violations of the law committed by the manufacturers.

These standards, in fact, serve to protect consumer interests, yet they are not meant to protect consumers from the kind of damages claimed by the plaintiff. Their protective effect for third-party interests is limited to the purchasers’ interest that a purchased vehicle will be approved for use in road traffic and that the purchaser will not be barred from such use due to the vehicle’s nonconformity with the approved type or the regulations applicable to that type. However, the plaintiff does not complain about a violation of this interest. His motor vehicle has been approved for use and this type approval has not been revoked. The plaintiff rather claims the protected interest, which has been violated, to be his right of economic self-determination and, thus, the purchaser’s protection against the conclusion of an unwanted contract. These interests, however, are not included in the protective purpose of Directive 2007/46/EC and Regulation (EC) No. 715/2007.

In this respect the Panel has assented to the statements the Sixth Civil Panel expressed in its judgments of 25 May 2020 (VI ZR 252/19) and 30 July 2020 (VI ZR 5/20), which are also shared by the Seventh Civil Panel (decision of 1 September 2021 – VII ZR 59/21).

The fact that the above-cited rulings were related to claims against the vehicle manufacturers, whereas, in this case at hand, the plaintiff claims a violation of the aforementioned rules and standards by the Federal Motor Transport Authority does not result in a divergent assessment. Nothing indicates that these duties the approving authorities have towards the protected group of persons had any further or any other contents than the duties of the manufacturers. To the contrary, the authorities will act primarily in the public interest, so factually they are further away than the vehicle manufacturers from the conclusion of an (unwanted) contract like the one claimed by the plaintiff. As these conclusions are obvious and also supported by an argumentum a fortiori, in accordance with the acte clair doctrine there was no need to refer the matter to the Court of Justice of the European Union.

Lower Courts:

Regional Court Münster - judgment of 14 January 2021 - 14 O 440/19
Higher Regional Court Hamm - decision of 17 May 2021 - I-11 U 36/21

Relevant legal provisions:

Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles
Article 46 Penalties
Member States shall determine the penalties applicable for infringement of the provisions of this Directive, and in particular of the prohibitions contained in or resulting from Article 31, and of the regulatory acts listed in Part I of Annex IV and shall take all necessary measures for their implementation. The penalties determined shall be effective, proportionate and dissuasive. Member States shall notify these provisions to the Commission no later than 29 April 2009 and shall notify any subsequent modifications thereof as soon as possible.