VKI: First supreme court decision on the diesel scandal in Austria

Dealer must take vehicle back and refund purchase price

Vienna (OTS/VKI) – The VW diesel scandal has kept the car industry in suspense for more than 7 years. A total of 16 class action lawsuits by the Association for Consumer Information (VKI) have been pending since September 2018. The liability of VW for fraudulent intent was also legally established by the German Federal Court of Justice (BGH) in May 2020. The European Court of Justice (ECJ) signaled in the summer of 2022 that the thermal window used by VW is not permitted. The first decision of the Supreme Court (OGH) is now available. The affected dealer must take back the manipulated vehicle and refund the purchase price with interest. The usage fee is to be calculated according to the kilometers driven. The proceedings against VW as the manufacturer of the vehicle were interrupted.

The Supreme Court today published the first judgment on the VW diesel scandal on 10 Ob 2/23a. The Supreme Court makes it clear that not only the original manipulation software (“switching logic”) is inadmissible. The defect was also not remedied, since the remaining “thermal window” is another impermissible defeat device. Due to the thermal window, there is usually no continuous exhaust gas cleaning over a calendar year.

The dealer must therefore take back the vehicle and pay back the interest-bearing purchase price. He may only deduct a usage fee that is calculated on the basis of the kilometers actually driven in relation to the expected remaining mileage.

With regard to the liability of VW as the manufacturer of the vehicle, the proceedings were interrupted by the OGH, as a further decision by the European Court of Justice is to be awaited (QB vs. Mercedes-Benz Group AG – C 100/21).

In any case, this judgment also creates a basis for liability for the diesel scandal in Austria – and in view of the possible long limitation period – also for new lawsuits. “VW should now, at the latest, provide end-to-end compensation for the consumers who have been harmed,” demands Mag. Thomas Hirmke, head of the legal department at the VKI.