Tort liability of Volkswagen in the emissions scandal 1
In May 2020, four and a half years after the Volkswagen emissions scandal became public in September 2015, the Bundesgerichtshof ('BGH'), the highest German civil court rendered its landmark decision on Volkswagen AG's tort liability.3 This judgment had been long awaited by lower courts, parties and the media. After the first claims of diesel car owners had been filed in German courts a very heterogeneous case law developed. It was far from clear whether Volkswagen was liable for the harm caused to 2.4 million purchasers and lessees of vehicles with EA189 engines. Liability could be based only on Sec. 826 German Civil Code. Pursuant to Sec. 826 BGB, a person who intentionally causes damage to another person in an immoral manner is liable to pay damages. The reason why Sec. 826 German Civil Code served as a basis for potential claims – instead of the general provision of Sec. 823 para. 1 German Civil Code – is that a mere financial loss (reiner Vermögensschaden) is insufficient as a basis for tort claims under Sec. 823 para. 1 German Civil Code. Different from the French system of a general tort rule, German tort law generally requires that the defendant has damaged a so-called absolute right such as life, health, property, but not only caused a mere financial loss. The latter can be compensated only based on Sec. 826 or 823 para 2 German Civil Code. It took numerous decisions and critical reviews before step-by-step a majority of lower courts concluded that Volkswagen had acted intentionally and contra bonos mores by obtaining surreptitiously type-approval of its diesel vehicles from the German Kraftfahrt-Bundesamt (Federal Motor Transport Authority) and by putting the manipulated vehicles on the market.