Table of contents
Basic information about the action
Why is the Federation of German Consumer Organisations (vzbv), bringing a model declaratory action against Daimler AG?
The authorities have recalled a number of vehicles manufactured by Daimler AG. According to the Federal Motor Transport Authority (Kraftfahrt-Bundesamt, KBA), the reason for the recalls was the use of illegal defeat devices. By fitting vehicles with such devices, manufacturers can ensure that the vehicles comply with the legal emissions thresholds during the type approval process. However, once the vehicles are on the road, they exceed these thresholds by a significant margin. Such vehicles should never have been approved in the first place. They will be taken off the road if their owners do not arrange for the software in the vehicles to be updated. According to the Federal Court of Justice (Bundesgerichtshof, BGH), the conclusion of a purchase agreement for a vehicle that cannot be registered constitutes damage for which compensation can be claimed.
Daimler AG denies having acted unlawfully and harmed consumers. For this reason, vzbv seeks a declaratory judgement which formally establishes that illegal defeat devices were installed in certain vehicle models and that Daimler AG acted intentionally and contrary to public policy in this regard.
Many consumers received recall letters in 2018, which means that the corresponding claims will become time-barred at the end of 2021. By joining the action, consumers have the opportunity to suspend the limitation period for their claims while the court is hearing the model case.
Which findings are sought from the court?
The court is requested to rule that defeat devices were installed in certain vehicle models and that, by fitting such devices, Daimler AG acted intentionally and contrary to public policy. This is the basis for any claims to damages by consumers.
How will consumers benefit from this action?
First, the model declaratory action is intended to prevent individual claims from becoming time-barred. Joining the action suspends the limitation period for the claim while the court is hearing the model case. Consumers have the chance to wait for the ruling and then decide how to proceed. The judgment will also be binding for all (German) courts, which will then make a detailed decision on the claim for damages if a consumer has joined the proceeding. As part of the model declaratory action, the participants will also be relieved of the majority of the work required to conduct court proceedings. vzbv will bear the full risk of legal costs. Consumers can register their claims in the claims register free of charge.
If a favourable judgment is obtained, consumers who have joined the action will no longer have to dispute the question of whether Daimler AG intentionally fitted vehicles with defeat devices, and – if so – which ones. Currently, individual proceedings may still founder on this question, depending on the arguments brought forward in the case.
If a settlement is reached, as in the model case against Volkswagen AG, consumers could derive claims directly from this. They could receive payments directly and would no longer have to pursue their own lawsuit. However, it remains to be seen whether this will happen.
What would be the risks of this action compared to the other available options?
As with all legal actions, the model declaratory action also entails the risk that the court does not decide in the consumers’ favour.
A judgment against vzbv would also be binding for all registered consumers. If the court does not rule in favour of consumers, those who joined the action will not be permitted to bring another action against Daimler AG in this regard.
In addition, not even a favourable judgment would guarantee consumers a direct payment claim. Certain aspects (such as the exact amount of the damage) depend on the circumstances of every individual case, which vzbv is unable to take into account in the action. If it is not possible to resolve the individual case out of court, consumers will have to enforce their claims again as part of an individual action. The Federal Court of Justice assumes that consumers will have to bear the costs of use for the kilometres they drove with their car if they choose to rescind the purchase agreement. This could mean that the compensation that consumers would receive is lower if the model declaratory action is conducted in stages than if they had taken direct legal action.
Taking part in the model declaratory action could be of interest for consumers who do not currently intend to take direct legal action due to the risks involved. In that case, they would benefit at a later point in time from the comprehensive and binding rulings which the Higher Regional Court Stuttgart or the Federal Court of Justice makes in their favour (see also: “How will consumers benefit from this action?” and “Which findings are sought from the court?”)
Who is the action for?
Which vehicles are affected by the model declaratory action?
The model declaratory action covers various models from the Mercedes GLC and GLK range which have been subject to official recalls. It covers the following models:
GLC 220 d 4Matic
GLC 250 d 4Matic
GLK 200 CDI
GLK 220 CDI
GLK 220 CDI 4Matic
GLK 220 BlueTec (4Matic)
GLK 250 BlueTec (4Matic)
What if consumers bought their car second hand or have already sold it – can they still join the action?
Consumers can still take part in the action if they have a second hand car. However, it is important that the software update required by the KBA has been carried out after they bought the car and not prior to the purchase.
Furthermore, consumers can still join vzbv’s action if they already sold their car.
Can consumers take part in the action if the software update has already been carried out on their vehicle or if they plan to have the software updated in the near future?
It does not make any difference to the claim whether the software update required by the KBA has already been carried out or not. The Federal Court of Justice has already ruled on this in the model case procedure against Volkswagen AG.
The situation is different, however, if the software update has been installed on the vehicle before consumers bought it. In that case, they unfortunately cannot join vzbv’s action.
What if consumers bought their vehicle outside Germany or live abroad – can they still join the action?
All affected consumers may register their claims with the claims register. However, whether and to what extent they will benefit from the declaratory judgement if they bought the vehicle outside Germany or have their residence abroad will depend on their individual case. These consumers should seek legal advice in this regard.
How to participate in the action
How can consumers find out how to join the action?
Consumers can find a claims checker on the following website: https://www.musterfeststellungsklagen.de/daimler/klage-check. They can use this tool to check whether their case could qualify for joining vzbv’s model declaratory action. Please note that this checker is only available in German.
When can consumers join the action?
The claims register has been opened on 03.11.2021. From now on, onsumers have at least two months to enrol in the claims register at the Federal Office of Justice. The exact deadline is yet to be determined and will depend on the date of the first oral hearing. The last opportunity for consumers to enrol in the claims register is on the day before the case is heard.
Please find more about the register opening in our press release.
On the website https://www.musterfeststellungsklagen.de/aktuelles/term/daimler, vzbv will provide timely information about all relevant dates as soon as they are announced. Please note that these news will only be available in German.
What should participating consumers keep in mind during the procedure?
For as long as consumers participate in the model declaratory action, they may not bring their own legal action in parallel. Consumers should obtain individual advice on this from a legal professional. Certain deadlines apply for registering and deregistering from the claims register.
Is it possible for consumers to deregister?
Registered consumers can withdraw their registration up to the end of the first day of the court hearing. The withdrawal period is thus one day longer than the period for registering claims.
How much time do consumers have to pursue their own claims after a positive ruling?
Consumers will benefit from the suspension of the statute of limitations for a further 6 months after a favourable judgment becomes legally effective. The date on which claims become time-barred depends on the circumstances of each individual case. Consumers have at least 6 months after the end of the model case procedure to pursue their own claims.