Daimler wins next diesel litigation before OLG (2019)

D he owner a Mercedes GLK 220 CDI from 2014 classified according to the Euro 5 emissions standard had sued the Swabian car manufacturer for deliberate and immoral damage. The plaintiff suspects that Daimler has installed an illegal switch-off device based on test stand detection and a so-called thermal window in his car. In the event of a test bench detection, the emission control system would possibly only work correctly on the test bench and shut down in normal traffic. A thermal window means that the exhaust gas cleaning only works correctly in a certain temperature range - the manufacturers mainly justify this with protection for certain components.

The Higher Regional Court (OLG) Stuttgart made it clear that the thermal window objection was irrelevant hat: Although this technology is installed in the GLK, EU standards expressly allow its installation to prevent damage to components due to overheating. The plaintiff could not prove that the thermal window violated EU law - but he should have done so, since in civil proceedings the burden of proof usually rests with the plaintiff.

Liability for possible test stand detection complicated

The situation was a bit more complicated when it came to the accusation of test stand detection. It is not clear whether the said GLK is even equipped with such a recognition. If he is, it would still be unclear who would be liable at Daimler. The plaintiff wanted the Daimler board of directors to be liable for the suspected test bench detection because, in his opinion, the managers should have known about it. The court did not follow this line of argument and stated that the fact that a company has a management board does not automatically mean that it shares the full knowledge of its employees.

Federal Court of Justice next station

For Daimler it is the sixth judgment in the second instance nationwide - all judgments have been made in favor of the car manufacturer. The Higher Regional Court of Stuttgart expressly allowed an appeal to be made before the Federal Court of Justice (BGH) - the presiding judge Hans-Joachim Rast emphasized that the questions raised require a fundamental clarification by the highest German civil court. The representative of the prosecution, attorney Gerrit Hartung, announced that one would definitely go to the BGH.