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Opinion of the ECJ Advocate General and the significance in the Fiat Ducato emissions scandal

Opinion of the ECJ Advocate General Atahnasios Rantos gives consumers hope - Liability of vehicle manufacturers in the emissions scandal possibly further than the BGH sees it

In the opinion of Advocate General Atahnasios Rantos at the European Court of Justice (ECJ), he stated that European standards are intended to protect the interests of an individual purchaser of a vehicle if the vehicle has an illegal defeat device. The member states of the European Union are obliged to enable a claim for compensation against the manufacturers if an inadmissible defeat device has been installed in a motor vehicle.

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Background of the procedure

The Ravensburg Regional Court wanted to know from the ECJ whether the regulations on exhaust emission limits (Directive 2007/46/EC and Regulation No. 715/2007) allow the individual purchaser of a vehicle that does not comply with the specified exhaust emission limits (NOx emission limits) to claim damages on the basis of tort claims.

The court also wanted to know how such a claim for damages could be calculated.

View of the BGH

In so-called "diesel proceedings", the Federal Court of Justice considers Section 826 of the German Civil Code (damages for immoral damage) to be the correct basis for damages. Accordingly, the injured parties must provide evidence that the defendant has acted in an immoral manner.

Assessment of the ECJ Advocate General

The Advocate General suggests that the EU rules (in this case specifically Art. 18(1), Art. 26(1) and Art. 46 of Directive 2007/46/EC) must be interpreted as protecting the interests of an individual purchaser of a motor vehicle.

This is also expressly intended to protect the interest of an individual purchaser of a motor vehicle not to acquire a vehicle equipped with an inadmissible defeat device (Art. 5 Par. 2 EC No. 715/2007).

If an illegal defeat device is installed, Directive 2007/46 is to be interpreted as obliging the member states to enable a claim for compensation against the manufacturer.

Contrary to the BGH, the Advocate General ECJ does not consider Section 826 of the German Civil Code (BGB) to be the correct legal basis here, but rather the tort claim for damages within the meaning of Section 823 (2) of the German Civil Code (BGB) in conjunction with the EU regulations on exhaust gas limits. This view contradicts the view of the BGH and the BGH would have to bow to this case law.

Simple negligence is sufficient for a claim for damages within the meaning of Section 823 (2) of the German Civil Code. No immoral conduct needs to be shown. Negligent infringements by vehicle manufacturers are also to be sanctioned by a claim for damages by the purchasers against the manufacturer on the basis of the EU rules in German law, and the manufacturers must take this circumstance into account.

Consequences for consumers

If the ECJ follows the opinion of the Advocate General, the "hurdle" of proving intent and immorality will no longer apply. The existence of an illegal defeat device that leads to the EU emission limits being exceeded is sufficient to justify a claim for damages.

In a nutshell, for many motorhome owners this means that it will be easier for you to enforce your damages against Fiat in the Fiat Ducato emissions scandal. The ECJ generally follows the Advocate General's opinion, so consumer-friendly case law for Fiat Ducato-based motorhomes is likely to follow. This will also apply to Germany.

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