Daimler welcomes the decision by the German Federal Court of Justice (BGH) on the so-called “thermal window”

July 14, 2021 - With the decision of 07/13/2021, the German Federal Court of Justice (BGH) has again dealt 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 confirmed the lower courts in that matter and once again 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 decision by the BGH. In the company’s opinion, it serves as a precedent for thousands of similar legal proceedings in Germany.

You can find the BGH’s press information on this proceeding here (German language only).

The statements of the BGH are in line with previously BGH decisions in Daimler proceedings, in particular the decision of January 19, 2021.

What is this about?

The case concerns a Mercedes-Benz C 220 CDI Blue Efficiency with an OM 651 diesel engine of with the emission standard Euro 5. The plaintiff considers the temperature-dependent control of the exhaust gas recirculation system (so-called “thermal window”) of his vehicle to be a defeat device. The plaintiff sees himself deceived and therefore claims damages.

The lawsuit was unsuccessful in the lower instances at the Regional and Higher Regional Court (OLG) – the courts have each ruled in Daimler's favor. The respective vehicle is 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 control of the exhaust gas recirculation system (so-called „thermal window“) cannot be compared to the defeat device that was used by Volkswagen in the EA 189 engine: the functionality used by Daimler does 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, it operates in the same way on the road as on the test stand.

Our position in brief:
• We welcome the decision by the German Federal Court of Justice (Bundesgerichtshof, BGH).
• The decision serves as a precedent for thousands of similar legal proceedings in Germany.
• The BGH - Germany’s highest court of civil jurisdiction – has again confirmed an important aspect of Daimler’s legal opinion: The temperature-dependent control of the exhaust gas recirculation system (so-called “thermal window”) is 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 is the BGH’s ruling 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 decision, the BGH rejected general argument of the law firms.

Why did the BGH refer the case back to the OLG Koblenz (Koblenz Higher Regional Court)?

The BGH has referred the case back to the Koblenz Higher Regional Court (OLG) because in the opinion of the BGH, the court has made a procedural error by not adequately clarifying a point in the plaintiff's submission.

The plaintiff only raised his allegation in a written statement shortly before the hearing in the second instance. Daimler was therefore not afforded the opportunity to comment on this new allegation in a substantiated manner.

Daimler assumes that the OLG Koblenz will again reject the lawsuit.

What’s next now?

Daimler expects the decision 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.

Press Information by the BGH regarding the „thermal window“ of 7/13/2021 (German)

Press Information by the BGH regarding the „thermal window“ of 1/26/2021 (German)

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