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Rulings in the Fiat Ducato emissions scandal

On this page you can find out the current status (September 2022) of the case law in the Fiat Ducato camper emissions scandal.

Case law has been turning against Fiat and in favor of consumers in recent months in the Fiat Wohnmobil diesel scandal. Some regional courts already decide in favor of the motor home owners. These decisions are increasingly joined by the higher regional courts - such as the Munich Higher Regional Court - and have already announced consumer-friendly decisions. In addition, at the European level, the Advocate General at the ECJ is calling for a claim for damages in connection with the diesel scandal.

The courts that still rule in favor of Fiat and against the motorhome owners represent a legal view that is likely to change after the expected ruling of the ECJ and the expected change in case law of the BGH. In sum, a favorable legal situation for the motorhome owner is to be expected.

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Published 27 September 2022

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Positive verdicts in Fiat Ducato emissions scandal (against Fiat)

In the meantime, there are many positive final judgments (e.g. . LG Köln Urt. V. 12.08.2022 Az. 10 O 30/21; LG Dortmund Urt. v. 03.05.2022, Az. 3 O 542/20; LG Stuttgart Urt. v. 14.04.2022, Az. 20 O 147/21; LG Dessau Urt. v.. 14.04.2022, Ref. 4 O 315/21; LG Landshut Urt. v.. March 18, 2022, Ref. 54 O 1306/21) in the first instance, in which decisions were made against FCA Italy S.p.A. (Fiat).

With regard to these rulings, however, it must be pointed out that all of the rulings mentioned are not yet final. This means that it can be assumed that Fiat will defend itself against these "final judgments" and that the next higher court will have to decide.

In the above rulings, the courts summarily assume that an impermissible defeat device was installed in the Fiat Ducato-based motorhomes. The defeat device reduces exhaust gas purification after 22 minutes and leads to drastically excessive emission levels. The Fiat Ducato engines affected in our view can be found here.

This so-called "timer" does not serve the engine protection, but only the profit interests of Fiat, which is why the marketing of the vehicles is classified as immoral.

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Judgments

Cologne Regional Court, judgment of August 12, 2022, Case No. 10 O 30/21

In a judgment dated August 12, 2022, which is not yet final, the Cologne Regional Court ordered Fiat to pay damages (Case No. 10 O 30/21). The court ordered Fiat Italy S.p.A. to pay EUR 50,525.36 against return of the motor home.

The court ruled that the plaintiff had suffered immoral damage from Fiat Italy S.p.A. (§ 826 BGB). The Cologne Regional Court thus continues the trend of consumer-friendly case law.

In the present case, the vehicle in question was a motorhome based on a Fiat Ducato(Multijet 150, 2.3 liters, Euronorm 6b).

The Cologne Regional Court finds that the "timer function" is an impermissible defeat device within the meaning of Article 5 (1) of Regulation (EC) No. 715/2007. The court also considers it to be unethical. Especially in connection with the duration of the test cycle, which is about 20 minutes. The same duration, after which the exhaust gas cleaning is deactivated or strongly reduced. The court does not consider the plaintiff's arguments in this regard to be sufficiently disputed. In the opinion of the court, this result is not contradicted by the type approval granted by the Italian approval authority. According to the court, the effect of the type approval is no longer applicable if the type approval was obtained by fraud or by means of false information.

The Cologne Regional Court also assumed a mileage of 300,000 kilometers with regard to compensation for use ().

Dortmund Regional Court Judgment of May 3, 2022, Case No. 3 O 542/20

In a judgment that is not yet final, the Regional Court of Dortmund sentenced FCA Italy S.p.A. (hereinafter: Fiat) to pay 26,942 euros in damages. In return, the plaintiff must return its vehicle, a Carado T 447. It is a motorhome with Fiat Ducato base vehicle with a 2.3l Multijet, 96 kW diesel engine type F1AE3481D and Euro 5b emission standard. The claimant made a down payment and financed the remaining purchase price of 49,990 euros with a loan.

In contrast to the judgment of the Regional Court of Freiburg dated February 26, 2021 (Case No.: 14 O 333/20), the Regional Court of Dortmund considers it legally possible for German courts to rule on the admissibility of defeat devices even though the type approval was granted by Italian authorities. In the opinion of the court, it cannot be the case that a so-called "factual effect" of the Italian approval authorities, i.e. the legal confirmation of compliance with limit values, applies if this has been obtained fraudulently or in any case with false or incorrect information.

The court is convinced that Fiat's software was programmed in such a way that the statutory exhaust emission limits were only observed on the test bench. In normal driving operation, on the other hand, the statutory exhaust emission limits were not observed, so that this so-called switch-over logic (switch-over or reduction of exhaust emission control in normal driving operation) was directly aimed at fraudulently deceiving the type approval authority. This is a timer-supported switch-off function.

The court is of the opinion that Fiat's actions can only be explained by reasons of profit maximization. Using a defeat device for this purpose is immoral. For this reason, the court ordered Fiat to pay damages pursuant to § 826 BGB.

The fact that the plaintiff is not the owner of the vehicle, but has transferred it to a bank as security within the framework of the financing, does not prevent the claim for damages. Even the financing costs can be claimed.

For the calculation of the value of the compensation for use, i.e. the part in terms of value that the plaintiff consumed by driving the motor home, the court used a total mileage of 300,000 km as the basis for calculation (expected remaining mileage at the time of acquisition). In the opinion of the court, the benefit of use claimed by the purchaser is calculated according to this formula:

Benefit of use = (Gross purchase price x distance driven (since acquisition)) / expected remaining service life at time of acquisition

Our law firm also considers the total mileage for a newly purchased motorhome to be at least 300,000 KM.

Stuttgart Regional Court judgment of 14.04.2022, Ref. 20 O 147/21

The Regional Court of Stuttgart sentenced FCA Italy S.p.A. (hereinafter: Fiat) to pay damages in relation to the diesel emissions scandal in a judgment that is not yet final. The case concerned a motor home with a Fiat Ducato base vehicle manufactured by Fiat in which a 2.3l Multijet, 96 kW diesel engine is installed.

What seems particularly noteworthy about this ruling is the way in which the case was resolved. Although Fiat was ordered to pay damages, the court based this on a different basis of claim than the usual one. Instead of condemning Fiat on the basis of intentional and immoral damage pursuant to Section 826 of the German Civil Code, the Stuttgart Regional Court condemned Fiat for (at least) negligent violation of a protective norm. What makes no difference in the result (insofar as a claim for damages exists) could have a positive effect, however, in that courts that have difficulties in determining the immorality of Fiat's actions are given another possibility to construct a liability for damages on the part of Fiat. It is nevertheless conspicuous that the court does not address any possible immoral damage.

The LG Stuttgart also states that in order for the limit values to be complied with in actual driving under normal operating conditions, as required by the ECJ (ECJ, judgment of 13.12.2019 - T.339/16), it is not sufficient for the limit values to be complied with only during the test situation. This decision is justified in detail and convincingly by the LG Stuttgart. Thus, in the opinion of the LG Stuttgart, there is also an inadmissible defeat device. The court rejects Fiat's counterargument that normal operating conditions are those of the test situation. This is particularly convincing because otherwise the NEDC test cycle would merely represent a purely hypothetical test of the limit values, the purpose of which would be to check whether the defendant's engines are fundamentally capable of complying with the prescribed limit values only on the test bench, but not in real driving conditions. However, such a view is neither consistent with the wording of Regulation (EC) No. 715/2007 nor with the legislative intent to improve Europe's air quality through the regulation.

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Dessau Regional Court Judgment of April 14, 2022, Case No. 4 O 315/21

The Regional Court of Dessau-Roßlau joins the consumer-friendly case law and sentences FCA Itlay S.p.A. (hereinafter: Fiat) to pay damages in a judgment that is not yet final. The vehicle in dispute is a motorhome built in 2017, Fiat Ducato base vehicle (Fi1 engine, EU emission standard 6).

The ruling is a good sign for consumers. It continues the trend in case law to oblige Fiat to pay damages. The Dessau Regional Court unequivocally states that the device used by Fiat, in the form of the timer, is an impermissible defeat device. The court is also convinced that the production of the base vehicle equipped with the impermissible defeat device constitutes intentional immoral damage to the plaintiff.

It is also particularly worth mentioning that the court clarifies that Fiat cannot rely on the fact that the responsible type approval authority in Italy came to the conclusion that no impermissible defeat device is used in the vehicle in question. This is because in the present case the incorrectness of this assessment is virtually obvious. This assessment by the court can also be underscored by the fact that in similar cases (e.g. Fiat500X), the KBA launched recall actions even though type approval was available from an Italian authority. This shows that the KBA is not bound to a foreign type approval without exception.

The granting of type approval by the MIT therefore does not have any effect on the facts. The Federal Court of Justice (BGH) is also of the opinion that tangible evidence of the use of an impermissible defeat device does not only exist when the competent authority has ordered a recall action with regard to the vehicles concerned (BGH, decision dated January 28, 2020, case no. VIII ZR 57/19). This means that the non-existence of an impermissible defeat device cannot necessarily be concluded solely on the basis of the inactivity of the authority.

In addition, the ruling also clarifies that the built-in timer is not comparable to a thermal window, for which the BGH found that an impermissible defeat device can be rejected. In the case of the timer, the car does not behave in the same way throughout the entire period of use, but rather there is a time "cut" after the mode of operation changes. Thus, the BGH's line of reasoning regarding the thermal window cannot be applied to Fiat's timer.

Landshut Regional Court Judgment of March 18, 2022, Case No. 54 O 1306/21

In a judgment that is not yet final, the Landshut Regional Court orders FCA Italy S.p.A. (hereinafter: Fiat) to pay damages in relation to the sale of a motor home affected by the emissions scandal, thus issuing another consumer-friendly judgment.

The vehicle in question is a motorhome of the brand "Challenger" with a Fiat Ducato as the base vehicle (diesel engine with 2.3 liter displacement, 109 kW power, EU emission standard 6).

Here, too, the court concluded that the timer installed by Fiat constituted an impermissible defeat device and that the plaintiff was entitled to damages on the basis of intentional immoral damage.

The Landshut Regional Court states that it is clear that the manipulation in question constitutes immoral damage in the same way as the EA189 engine of the VW Group. This is because the purpose of an exhaust gas purification system is precisely not to be functional only for 22 minutes and thus for the duration of the NEDC cycle.

In contrast to previous rulings, however, the court concluded here that, in assessing the damage, it must be taken into account that there is no threat of a decommissioning order because the type approval granted by the Italian authority has enough binding effect that the German authorities cannot enforce such an order.

In our opinion, however, this ignores the fact that, in view of the obviousness of the unlawfulness of the defeat device under EU law, there is not only an abstract but even a latent danger that this will lead to operating restrictions. It is obvious that not only the MIT but also the KBA will intervene if it comes to the conclusion that the EU illegality is so obvious that a binding effect is not applicable. Above all, the letter dated May 5, 2021 shows that action by the KBA is not completely ruled out. Accordingly, the German authority is already in the process of examining further steps to remove the inadmissibility in the affected vehicles.

On the other hand, the Dessau Regional Court also considers the risk of closure to be imminent. It cannot be ruled out, for example, that an Italian authority will act lawfully in the future and that the obviousness of the infringement of the law could also lead to operating restrictions elsewhere. In addition, the Dessau Regional Court considers it possible that the KBA could come to the conclusion that the binding effect of the decision of a member state could be dropped in the event of an obvious infringement of EU law. (Dessau Regional Court judgment of April 14, 2022 AZ 4 O 315/21)

However, if other courts follow the Landshut Regional Court's view that there is no threat of a decommissioning order, the ruling could have a negative impact on consumers when calculating damages.

Meiningen Regional Court, judgment dated January 21, 2022, file no. 1 O 425/21

The Regional Court of Meiningen sentenced FCA Itlay S.p.A. (hereinafter: Fiat) to pay damages in connection with the diesel emissions scandal in this judgment, which is not yet final. The vehicle in question was a Fiat Ducato Bürstner Nexxo T 660 motor home.

The Regional Court ruled that by placing the defective engine with an impermissible defeat device on the market, Fiat had committed intentional immoral damage pursuant to § 826 BGB. 

The court states that a device that reduces the effectiveness of an emission control system under certain conditions is impermissible unless it falls under an exceptional circumstance stipulated in the regulation (Regulation 715/2007/EC). However, the court does not consider the existence of an exceptional circum stance to be given here, as the defeat device used obviously served solely to improve the emission values in the test bench in order to meet the otherwise unattainable values.

The non-existence of an exceptional circumstance is convincing in our view. In particular, the device cannot be justified on supposed grounds of engine protection. Regulation (EC) 715/2007 stipulates that emissions must be effectively restricted throughout the normal life of the vehicle. However, this regulation would run empty if general engine wear were sufficient to justify an exemption.

The plaintiff can claim damages by being placed in the same position as if he had never concluded the purchase agreement and consequently never paid the purchase price. However, the plaintiff must then take into account the advantages gained. The damages are therefore composed as follows: Gross purchase price less compensation for use. The amount of the benefits obtained is calculated by multiplying the gross purchase price of the vehicle by the number of kilometers driven, divided by the expected total mileage. In the present case, this amounted to 200,000 km.

In addition, the vehicle in question must of course be surrendered.

The damages to be expected from a lawsuit therefore depend heavily on the number of kilometers already driven, even if a claim has been affirmed.

Other judgments

The Landau Regional Court issues the first final judgment in the FCA Itlay S.p.A. (hereinafter: Fiat) emissions scandal and sentences Fiat to pay damages in its judgment, which is not yet final.

Up to now, Fiat has mainly been subject to default judgments in the emissions scandal, as it had not yet sufficiently established its legal defense. Now a judgment has been issued against Fiat in a lawsuit in which the company also defended itself.

The vehicle in dispute was a Pilote V 600 G motorhome (180 Multijet 3.0 engine, Euronorm 5) based on the basic Fiat Ducato model, purchased on 23.11.2015.

The Landau Regional Court awards the plaintiff damages on the grounds of intentional immoral damage.

In accordance with the supreme court case law of the Federal Court of Justice (BGH), the Regional Court considers the damage suffered by the plaintiff to have already been established by the purchase of the mobile home and thus by the conclusion of an economically disadvantageous contract.

The court also considered it proven that the timer used by Fiat was an impermissible defeat device.

In addition, the court considered Fiat's actions to constitute immoral conduct. If the parameters of a defeat device are set up so narrowly that the reduction in NOx emissions can in fact only be complied with on the NEDC test bench, this can justify a claim for damages in the same way as the so-called switching logic of the VW EA 189 engine, because such a device is aimed precisely at fraudulently deceiving the responsible type approval authority and deliberately exploiting the guilelessness of the purchasers. In particular, the court finds that Fiat carried out the manipulation only for reasons of profit maximization and thus for an immoral purpose.

The ruling represents good news for consumers. It shows that the courts can come to the conclusion that Fiat is liable for damages even if Fiat disputes the claim. It remains to be seen whether this view will prevail in the highest courts. In our opinion, this ruling points strongly in this direction.

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Position Fiat in the judgments

Fiat always refers to the fact that the Italian registration authority has issued a type approval and that it is therefore certain that all vehicles of the same type comply with all exhaust emission limits.

In reality, Fiat often fails to comply with the limits many times over, especially with Fiat Ducato-based vehicles. It is believed that this is probably due to a time-based defeat device that ensures that the emission control system does not function properly 22 minutes after the engine starts. As the test cycle takes around 20 minutes, Fiat's Fiat Ducato base vehicle only complies with the emissions limits on the test bench, but not under normal driving conditions on the road.

Negative verdicts in Fiat Ducato emissions scandal

Despite the strong signal effect of many positive judgments ordering Fiat to pay damages, there are also negative judgments. The negative judgments are essentially based on two considerations.

On the one hand, many courts do not see an impermissible defeat device, since after all there is a type approval from Italy.

Second, many courts are not convinced that the buyers have succeeded in proving so-called "immorality" against Fiat within the meaning of Section 826 of the German Civil Code. In order to prove immoral conduct, it is necessary that Fiat or those responsible at Fiat have acted intentionally to the detriment of the mobile home buyers.

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Opinion of the Advocate General at the European Court of Justice (ECJ)

In light of the opinion of ECJ Advocate General Atahnasios Rantos in a diesel exhaust case, it looks like the tide will soon turn in favor of consumers.

The Advocate General's assessment that the European rules on type approval, exhaust emission limits and exemptions for defeat devices, in their interaction, are intended to provide the purchaser with individual protection, should be emphasized. In his view, the European rules in this regard are protective laws.

For this reason, it is completely irrelevant for damages whether Fiat acted intentionally in an immoral manner, but only decisive that at least negligently a protective law was violated. In particular, the court regards Art. 18 Par. 1, Art. 26 Par. 1 and Art. 46 of Directive 2007/46/EC as protective laws.

In this respect, in his opinion, the correct basis for a claim is not Section 826 of the German Civil Code, but Section 823 (2) of the German Civil Code. This leads to a considerable simplification for the enforcement of consumer-friendly judgments.

Importance for motorhome owners

For motorhome owners, current developments in case law in Germany and at the European level mean that it will probably be easier for them to enforce their damages in the diesel scandal against Fiat. Both the European Court of Justice and the Federal Court of Justice and the Higher Regional Courts - such as the Munich Higher Regional Court - indicate a change in case law. In summary, a more consumer-friendly jurisdiction is emerging, which can lead to a better probability of success in court for the motorhome owner if targeted action is taken against Fiat.

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