KPMG Law defends Federal Motor Transport Authority against claim for damages in connection with the emissions scandal

The state is not liable to vehicle purchasers for damages. KPMG Law has defended the Federal Motor Transport Authority (KBA) against a civil plaintiff’s state liability claim in connection with the so-called emissions scandal before the Higher Regional Court of Schleswig (Case No. 11 U 61/24). KPMG Law had already successfully represented the Federal Motor Transport Authority in the first instance (Flensburg Regional Court, judgment of August 23, 2024, case no. 2 O 37/24). The plaintiff had made a claim against the Federal Republic of Germany, represented by the KBA as the type approval authority for motor vehicles. He accused the authority of not having adequately monitored the vehicle manufacturers and of having issued the type approval for his vehicle incorrectly. He based his claim on an alleged breach of the KBA’s supervisory duties in connection with the emissions scandal. In addition, the plaintiff complained about the KBA’s failure to take action against the thermal window used by the manufacturer of his vehicle. Last year, the ECJ (Case C-100/21) and subsequently also the BGH (VIa ZR 335/21) ruled that claims for damages by vehicle buyers against manufacturers are not excluded per se if a thermal window is used. From this, the plaintiff drew the conclusion that claims for damages against the state must also exist. The Flensburg Regional Court and, at second instance, the Schleswig Higher Regional Court have clearly denied this.

No protective obligations of the Federal Motor Transport Authority towards vehicle purchasers on the basis of type approval law

Neither court saw any basis for a claim under state liability law. The plaintiff’s interest in preventing the conclusion of an unwanted contract was not covered by the protective purpose of type approval law. The alleged risk of decommissioning or prohibition of operation of the vehicle cited by the plaintiff was also clearly remote, especially since both the purchase of the vehicle by the plaintiff and the discovery of software manipulations by some vehicle manufacturers were more than eight years ago. The most recent case law of the ECJ and BGH referred to by the plaintiff does not change this. The 11th Senate at the Higher Regional Court of Schleswig informed the plaintiff that it unanimously assumed that the appeal was obviously unsuccessful. The plaintiff then withdrew his appeal.

Advisor:inside KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law):

Dr. Simon Meyer (partner, lead, Munich), Dr. Florian Gonsior (co-lead, senior manager, Düsseldorf), Vera Boes, Dr. Sandro Köpper (both senior associates, Hanover)