BGB § 123, § 323, § 346, § 347 no. 2, § 434 para. 1, § 434 para. 2 No. 2 Keywords: damages, vehicle, prospectus liability, material defect, software Source: BeckRS 2019, 54390
1. The action is dismissed.
2. The plaintiff is to bear the costs of the legal dispute.
3. The judgment is provisionally enforceable against a security deposit in the amount of 110% of the respective amount to be enforced.
4. The amount in dispute is … €.
1 The plaintiff is seeking compensation from … In connection with the so-called …/diesel/exhaust emissions scandal.
2 According to the invoice from defendant 1) dated 12.10.In 2016, the plaintiff purchased on 05.08.2016 at the car dealership of the first defendant, a Porsche Cayenne 3.0 liter/6 cylinder diesel car at a total price of … € (Annex K 30). The purchase price has been paid. The vehicle delivered to the plaintiff. Manufacturer of the engine is … AG, manufacturer of the vehicle otherwise is the defendant to 2), which purchases the engine from … The engine is not an engine of the EA 189 series.
3 The Federal Motor Transport Authority (KBA) came with – not contested – notice of … (annex B 4 of the defendant's. To 2; Annex B 2 of the Defendant. To 1) came to the conclusion that vehicles of this type were not equipped with an inadmissible defeat device and determined that the vehicles had been restored to conformity with regulations after the defeat device had been removed in the meantime; reference is made to the notice for details.
4 The present legal representatives of the plaintiff made the following statements in two letters dated 28 February 2007.12.2017 (K 31), claims were asserted against the 1st defendant; the purchase contract was contested and rescission of the purchase contract was declared. Damages were claimed against the 2nd defendant by way of rescission of the purchase contract. In each case, no deadline was set for rectifying the claimed defect; instead, the rescission of the purchase contract was demanded by …
5 By letter dated 11.01.2018 (Annex K 32), the first defendant informed the plaintiff's representatives that the second defendant had worked out a technical solution for the necessary update of the engine software, a software update would be carried out for this purpose, the KBA had already issued a release confirmation for this; the withdrawal would therefore not be accepted. The … – visibly representing the 2nd defendant – rejected the claim by letter of 12.01.2018 (also contained in K 32) also referred to the available and approved software update.
6 The plaintiff is of the opinion that it effectively challenged the car purchase contract with the first defendant because the second defendant fraudulently deceived the plaintiff about the software manipulation it had carried out on the engine of the vehicle in dispute and that the first defendant, as its authorized dealer, must accept responsibility for this deception. Furthermore, the plaintiff refers to the declared withdrawal from the purchase contract. Several unauthorized defeat devices had been detected, … The defendant. To 2) cannot rely on the fact that it did not manufacture the engine because adjustments to the engine were necessary.
7 The plaintiff further believes that it has a claim for damages against the second defendant, which it bases on the principles of tort, also in connection with protective laws.
8 The plaintiff last requested:
9 The defendants each request,
10 The first defendant is of the opinion that, as an independent dealer, it does not have to accept responsibility for any deception on the part of the second defendant. The plaintiff was not an authorized dealer of the defendant 2). …, the update necessary for the adjustment had already been released before the rescission. The plaintiff's right to rescind the contract therefore lacked a material defect, and in any case a deadline for supplementary performance was not set. The plaintiff had also violated the duty to give notice of defects under commercial law.
11 The 2nd defendant additionally denies having deceived and damaged the plaintiff. Members of the defendant's Board of Management were not aware of any deceptive acts. It is not the manufacturer of the allegedly defective engine. The vehicle complies with the EU 6 standard. The plaintiff had not suffered any damage, not even in the form of a reduction in the market value.
12 For further details of the facts and the dispute, reference is made to the pleadings exchanged between the parties and the annexes thereto, as well as to the minutes of the oral proceedings held on December 31, 2009.01.2019 referred to.
Reasons for decision
13 The action is admissible in its entirety, in particular the Regional Court of Deggendorf has local jurisdiction. With regard to the 1st defendant, this follows from §§ 12, 17 ZPO (the defendant has its registered office in D.). With regard to the 2nd defendant, this follows from its reckless admission at the oral hearing on December 31, 2007, that it had.01.2019 (§ 39 ZPO).
14 Insofar as the plaintiff seeks a declaratory judgment on the obligation of the 2nd defendant to pay damages by means of claim number 2, this claim for a declaratory judgment does not lack legal interest despite the acknowledged priority of the action for performance i.S. From § 256 I ZPO. …
15 The action is unsuccessful on the merits. The court in this case agrees in full with the legal opinion of the Regional Court of Braunschweig (U.V. 20.12.2017 – 3 O 2436/16) to.
16 The plaintiff has neither a claim for rescission against the 1st defendant (I.) nor a claim for damages against the second defendant to (II.).
17 For lack of merit of the main claim, claims numbers 3 and 4 were also unsuccessful.
18 There is no liability on the part of the 1st defendant.
19 The plaintiff has concluded the car purchase agreement with the 1st defendant.)
– neither effectively gem. § 123 BGB contested
– nor by rescission pursuant to. §§ 434 Abs. 1, 347 no. 2, 323, 346 BGB converted into a settlement relationship.
– Nor can it do so on the basis of §§ 434 Para. 1, 437 no. 3, 280, 281 BGB
– or derive from the principles of prospectus liability.
20 The declaration of rescission in accordance with the lawyer's letter K 31 could not have any effect because the plaintiff was indisputably not deceived by the 1st defendant. Insofar as the plaintiff alleges fraudulent misrepresentation on the part of the 2nd defendant, contrary to the plaintiff's view, such misrepresentation would not be attributable to the 1st defendant as a mere seller. Rather, the 2nd defendant would have been a third party i.S. Of § 123 II BGB with the consequence that the first defendant should have been aware of the deception, which in turn is indisputably not the case.
21 The fact that the two defendants have a certain contractual relationship to each other is undisputed on the merits, but unhelpful. It is therefore irrelevant whether the 1st defendant is an "authorized dealer" of the 2nd defendant (according to the plaintiff) or not (according to the 1st defendant). The dealership agreement does not make the one party a vicarious agent (as the BGH has also consistently ruled) or the other party a subject of attribution. The plaintiff's assertion is therefore false (application S. 112), the question of interest here has not yet been decided by the BGH – the opposite is the case, admittedly not in the sense of the plaintiff.
22 This applies a fortiori if the claim of the plaintiff (statement of claim p. 112 ff) it is true that the second defendant uses the first defendant as its extended arm and gives instructions to the dealers. This does not explain why the defendant number 1), who is therefore particularly in need of protection, should be held responsible for the fault of the defendant number 2).
23 Insofar as the plaintiff declared the rescission of the purchase contract,
– It is irrelevant whether the vehicle in question had a material defect at the time of the transfer of risk because it was equipped with an inadmissible defeat device.S. Of type. 5 II of Regulation (EC) no. 715/2007, which would have opened up the plaintiff's warranty rights under § 437 BGB.
– For the declaration of withdrawal would not have become effective in this case either, because this defect could have been remedied by the update that was indisputably carried out, but the plaintiff indisputably did not give the defendant the opportunity to remedy the defect.
– and because the applicant has not substantially challenged the effectiveness of the update.
24 According to the established case law of the Federal Court of Justice, which the court follows, administrative acts are binding for other courts and authorities within the limits of their validity. Courts must therefore, as a matter of principle, observe administrative acts, even if they should be erroneous, as long as they have not been repealed by the competent authority or by a competent court. They have accepted the regulation or determination made by the administrative act unseen, d.H. Without their own review of the legality of the administrative act.
25 The mere denial of a release by the KBA on the part of the plaintiff (written statement of 15 February 2009) is not sufficient to prove that the vehicle was defective.01.2019, S. 10) is unhelpful. In view of the release notice submitted by both defendants, the plaintiff should have explained why this notice does not exist. The plaintiff has not argued that the defendant's representatives falsified the document presented, i.E. That they committed fraud in the proceedings. The extent and intensity of the test carried out by the KBA is not relevant due to the validity of the notice.
26 aa) By the decision of the KBA of … Has been bindingly established in this sense resp. Regulated,
– that the software used in the vehicles in question is not an impermissible defeat device i.S. Of type. 5 II of Regulation (EC) no. 715/2007;
– that for the vehicles concerned this proof has been provided in the meantime and that the modification of the application data presented by the second defendant is suitable to bring the vehicles mentioned into compliance;
– that the KBA examined the following facts with the following results:
– No impermissible defeat devices present
– existing defeat devices are permissible,
– Limit values and other requirements for emission control equipment complied with,
– that the fuel consumption figures and CO2 emissions originally stated by the manufacturer have been confirmed;
– Engine power and torque valid without change;
– Noise emissions still allowed
27 bb) From these findings and provisions it follows for the assessment under civil law,
(1) that prior to the implementation of the aforementioned measures a material defect i.S. Of § 434 I 2 no. 2 BGB had existed
(2) that the technical revision approved by the KBA by means of a software update is suitable for eliminating this defect in accordance with. § 439 I 1. Old. BGB, the rectification of the defect is therefore possible,
(3) that, contrary to the opinion of the plaintiff, a defect of title, a fortiori a non-rectifiable defect of title, is not present,
(4) that the update carried out eliminated the material defect that once existed.
28 (5) The plaintiff's claim regarding increased fuel consumption is already inconsistent with the findings of the KBA ("fuel consumption values … Confirmed"). However, it must be assumed that the plaintiff wants to express that, deviating from the general test results of the KBA, in the specific case an increase is to be determined. However, the plaintiff's arguments are far too unsubstantiated for an expert opinion to be obtained in this regard, as requested. The plaintiff does not state how high (in figures, i.E. Liters per 100 km) the consumption was before and after the update or how high it was after the update. But merely refers to empirical values for a completely different vehicle (…A) with a completely different engine, namely from the EA 189 series.
29 The submission regarding a shorter service life of the engine must remain unhelpful because the plaintiff does not submit which service life was agreed and how and which concrete deviation from this target condition is now supposed to exist.
30 (6) However, even if the update z.B. The consumption demonstrably increased, this would be unhelpful for the success of the action. If the update would have caused another, new defect (according to the claim of the plaintiff: "higher consumption"), this first rectification is considered to have failed in the legal sense (MüKo-BGB/Westermann, 7. Aufl., § 440 Rn. 10: "A failure is also the causation … Of a further defect"). This in turn has the consequence that according to. § 440 S. 2 BGB the plaintiff would have had to allow the defendant to 1) a further attempt at subsequent performance (here: to remedy the defect "increased consumption"). This did not happen.
31 b) § 323 I BGB stipulates that the creditor must have unsuccessfully set the debtor a reasonable deadline for subsequent performance prior to rescission. It is undisputed that the plaintiff did not set such a deadline for the first defendant, rather the plaintiff's representatives immediately declared the rescission and withdrawal from the contract. Contrary to the plaintiff's view, the setting of a deadline was not dispensable in this case because none of the possible exceptions was fulfilled.
32 aa) § 326 V i.V.M. § 275 I BGB entitles to rescission without prior setting of a time limit if subsequent performance is impossible. This is not the case here because the KBA's confirmation of release establishes that any defects will be remedied by the technical measure presented by the second defendant and that this will also not result in any disadvantages for limit values and other requirements for emission-reducing devices, fuel consumption values and CO2 emissions originally stated by the manufacturer, previous engine power and maximum torque and previous noise emission values.
33 At the time of the declaration of rescission, this confirmation of release was already available. However, a merely temporary impossibility of subsequent performance – even if the confirmation had not yet been submitted – could only be equated with a permanent impossibility if it calls into question the achievement of the business purpose and the other party cannot reasonably be expected to adhere to the contract until the impediment to performance has ceased to exist. Such a situation did not exist at any time in the present case. Rather, the reasonable grace period to be demanded had not yet expired, at any rate at the time the release was granted. For the consumer with average understanding and adequate attention to the situation, but in any case such an environmentally conscious car buyer as the plaintiff claims for itself, is roughly aware of the exhaust gas problem, namely of the fact that in the event that the engine control system has to be intervened in the context of the rectification, this is not in the hands of the authorized dealer himself. On the contrary, it is obvious that this requires cooperation with the vehicle manufacturer on the one hand and with the competent authorities, in this case the Federal Motor Transport Authority, on the other. It is also obvious that this takes a considerable amount of time. The defendant is therefore right to claim that a reasonable period for rectification had already not expired by the time the approval notice was issued by the KBA.
34 bb) According to § 323 II no. According to Section 3 of the German Civil Code (BGB), the setting of a deadline is dispensable if, in the event of performance not in accordance with the contract, special circumstances exist which, after weighing the interests of both parties, justify immediate withdrawal. This comes into consideration here under two aspects, namely that of fraudulent concealment of the defect and that of the fear that the software update might either not be successful or might lead to consequential defects. However, both aspects do not prevail in the result.
35 According to the case law of the Federal Court of Justice, the purchaser is generally entitled to claim damages in accordance with § 440 S of the German Civil Code. § 323 II No. 3 of the German Civil Code (BGB), if the seller has fraudulently concealed a defect from the buyer at the time of conclusion of the purchase contract. Insofar as here again a fraudulent concealment of an inadmissible defeat device and the associated infringement of Art. 5 II of Regulation (EC) No. 715/2007, on the one hand, as already explained, such fraudulent concealment can neither be accused of nor attributed to the 1st defendant itself. On the other hand, this case law is based on the idea that fraudulent misrepresentation generally damages the basis of trust required for subsequent performance. This consideration, which is only to be assumed "as a rule" anyway, does not apply in the present case because the rectification of the defect was carried out in coordination with the KBA, d.H. The independent authority responsible for this and thus under state supervision.
36 cc) The mere possibility or fear that defects will remain or new defects will arise after the (first) rectification does not justify the dispensability of setting a deadline for rectifying the defect. The legislator has instead provided for this possibility in § 440 S. 2 BGB expressly takes into account. According to this, a rectification of defects shall in principle only be deemed to have failed after the second unsuccessful attempt. The purchaser must therefore initially accept the risk described. The rights under § 437 no. 2 of the German Civil Code (BGB) shall remain unaffected in the event that the rectification of defects fails.
37 Insofar as the plaintiff also refers in this context in particular to a possible shortening of the service life of engine components, it must be added – as already explained – that the first defendant did not even make any promises at the time of conclusion of the purchase contract regarding the service life of engine components that go beyond the fact that any defects that occur will be remedied within the scope of the statutory warranty. However, the purchaser's claim for supplementary performance cannot extend further than the original claim for performance.
38 For the same reasons, claims for damages under purchase law according to §§ 434 I, 437 Nr. 3, 280 III, 281 German Civil Code (BGB) from. § Section 281 of the German Civil Code also presupposes the unsuccessful expiry of a reasonable period for subsequent performance.
39 In the case of car purchases, there is no room for the principles of prospectus liability developed by case law for the gray capital market, which is not regulated and organized by law, in addition to warranty law, which in any case already counts prospectus information as a condition through § 434 I 3 BGB. Prospectus liability is based on the assumption that the offering prospectus is usually the investor's only source of information. Only on condition that the information provided by the prospectus is complete and correct can the customer objectively assess the investment offered to him and correctly evaluate his investment risk, which remains with him anyway. Unlike in the case of capital investments, however, a large number of different sources of information are available for the decision on the purchase of a particular vehicle. The prospective buyer can, for example, inform himself about the respective vehicle in various car test and specialist magazines as well as on the Internet and can look at a vehicle that interests him and even test drive it. To apply the far more general prospectus liability law in addition to the specific purchase law is therefore not prompted. Rather, the principle that after the transfer of risk – as in this case – recourse to §§ 241 II, 311 II, III BGB is out of the question must be upheld.
40 Furthermore, the first defendant rightly points out that the plaintiff, who is indisputably a fully qualified merchant by operation of law, has not fulfilled its obligation to give notice of defects in accordance with. § 377 HGB has not been complied with. As shown, the defendant to 1) cannot be accused of fraudulent intent, so that the complaint does not fall under § 826 BGB. § 377 V of the German Commercial Code was dispensable. That no buyer will be permanently satisfied with a tampered vehicle (plaintiff's brief of 15.01.2019, S. 25) and that the complaint is dispensable if the seller knows this anyway may be true. However, this does not change the fact that the fully commercial buyer must inspect the vehicle promptly – especially if, as in this case, the purchase is made many months after the "diesel scandal" has become known and if the buyer may be aware that an engine from the … Group is installed in the purchased vehicle. The timely duty to give notice of defects and to examine the goods has precisely the purpose of providing the seller with certainty in such doubtful cases as here as to whether the buyer accepts the goods as being in conformity with the contract or not. Contrary to the plaintiff's view, the fact that the second defendant – whose conduct cannot be attributed to the first defendant – offered a software update does not prove that it was clear to the first defendant that the plaintiff would not keep the vehicle.
41 The purchase agreement is also not null and void according to. § Section 134 of the German Civil Code (BGB), Section 27 of the EC VDA, so that the question of what legal consequences can be derived from this can be left open. Because the provision of § 27 EC-FVG lacks, on the one hand, the third party protection character, so that a possible violation of this provision does not lead to the nullity of the sales contract (s.U. II 3). On the other hand, this would be the case as a rule and so also here only if the provision of § 27 would be directed against both contracting parties (Palandt/Ellenberger, BGB, 78. Aufl., § 134 Rn. 8 f), which is not the case here. On the contrary, the defendant rightly points out that the violation of mere regulations does not call into question the validity of the contract.
42 There is also no liability on the part of the 2nd defendant.
43 The statements on prospectus liability apply accordingly to the 2nd defendant.
44 Since the plaintiff has concluded a purchase contract with the 1st defendant, but not with the 2nd defendant, it cannot base its claim against the 2nd defendant on warranty claims under purchase law.
45 However, the plaintiff also cannot justify its claim for damages against the second defendant by
– for reasons of trust or. Guarantee liability with regard to the EC certificate of conformity
– from § 823 II BGB i.V.M. § 263 StGB
– i.V.M. §§ 6, 27 EG-FGV
– i.V.M. § 16 UWG
– i.V.M. § 4 no. 11 UWG
– from § 826 BGB
– or § 831 BGB
46 The EC certificate of conformity issued does not give rise to liability under either §§ 311 III, 241 II BGB or § 443 BGB.
47 The receipt of the EC certificate of conformity by the applicant does not constitute an independent guarantee i.S. The agreement was concluded in accordance with § 443 of the German Civil Code (BGB), because neither its wording nor its purpose can be attributed to the certificate of conformity with such a declaratory and legally binding intent.
48 According to its wording, the EC certificate of conformity, which is not even addressed to the plaintiff, but is issued in accordance with. § 6 I 1 EG-FGV only has to be attached to the vehicle, only "confirms" that the passenger car at issue conforms to the type described in the approval. The purpose of the certificate of conformity is to simplify and formalize the registration procedure: the registration authorities are to register the respective vehicle solely on the basis of the certificate of conformity presented (§ 6 III 1 FZV), d.H. Without having to re-examine the material requirements examined by the KBA in the approval procedure. The sole purpose of the certificate of conformity is therefore to ensure the problem-free registration of the vehicle in question.
49 Against this background, there are no indications that, by issuing the certificate of conformity, the 2nd defendant intended to commit itself in the sense of an independent guarantee to a liability that goes beyond the statutory warranty for defects of the respective seller.
50 Prerequisite for a claim for damages under § 823 II BGB i.V.M. § 263 StGB would initially be a deception of the plaintiff by the 2nd defendant.). It is irrelevant whether the plaintiff has substantiated any deception at all about the vehicle in question with regard to the allegedly installed manipulation software. In this respect, no active deceptive act on the part of the 2nd defendant is apparent, but at most a deception through failure to provide information about an inadmissible deactivation device. However, such deception by omission requires a guarantor position pursuant to § 823 II BGB. § 13 I StGB presupposes, d.H. That the offender is responsible as a "guarantor" for the prevention of the success. Insofar as – as here – duties of disclosure in connection with a purchase contract are concerned, such a duty of disclosure on the part of the seller, with whom there is after all a contractual relationship, is only considered to exist if it concerns value-forming factors of the object of purchase of very special weight. This must apply a fortiori to the vehicle manufacturer, who is not contractually bound to the purchaser and is therefore even further away. The 2nd defendant would nevertheless have a duty to provide information if, as the plaintiff believes, the EC type approval for the vehicle had lapsed as a result of the use of the impermissible defeat device. But this is not the case. According to § 19 II, VII StVZO, the operating permit in the form of the effectiveness of the EC type approval for the individual vehicle expires if modifications are made that worsen the exhaust or noise behavior. In the opinion of the Board, however, this only refers to changes made after completion of the production process. This is supported not only by the wording, but also by the historical interpretation of the provision. In the Bundesrat printed matter 629/93 on the 16. In its statement in the 2nd Ordinance amending road traffic regulations, which, among other things, amended § 19 II of the Road Traffic Licensing Regulations (StVZO) and gave it the version that is essentially still valid today, the court stated that "the previous EEC regulations do not make any statements about modifications to vehicles that have already been registered" and therefore "it can be concluded at present that the EC Member States are left to regulate modifications to vehicles that are already on the road". Nor is there any threat of the EC type approval being withdrawn altogether because, as can be seen from its decision, the KBA has not initiated a withdrawal of the EC type approval. On the contrary, the authority has ordered ancillary provisions to the existing type approval. However, even a withdrawal of the type approval would only result in the inability to use the plaintiff's vehicle if the responsible state authority were to then in turn withdraw from the type approval granted to it in accordance with § 5 of the German Civil Code (BGB). The Federal Republic of Germany has consistently ruled that the Federal Republic of Germany would exercise its discretion under § 5 FZV to permanently prohibit the use of the vehicle, which would entail the withdrawal of the vehicle's registration.
51 That the use of the – assumed – inadmissible defeat device, which can be eliminated solely by means of a released software update, in another way represents a value-forming factor to which the market attaches a very special weight, is neither sufficiently submitted nor apparent. This applies in particular to the plaintiff's allegation of a reduction in market value. In this case, any decline in the value of diesel vehicles is wholly or predominantly due to the fact that consumers, irrespective of specific incidents or defects, have reservations about these vehicles – across all brands – which are reflected in lower sales figures and, consequently, in lower market prices.
52 Finally, a guarantor obligation of the second defendant in favor of the plaintiff also does not result from prior conduct in breach of duty (ingerence). The use of an inadmissible defeat device constitutes prior conduct in breach of duty. However, a breach of duty only triggers a guarantor's obligation in individual cases if the infringed standard is intended to protect the legal asset in question. The recitals (1) to (6) and (27) of the infringed Regulation (EC) No. However, it can be inferred from Section 715/2007 that it does not serve the protection of individual property interests, but rather the further development of the internal market through harmonization of the technical regulations on the type approval of motor vehicles with regard to their emissions, in particular with the aim of significantly reducing nitrogen oxide emissions from diesel vehicles in order to improve air quality and to comply with air pollution limits. The pecuniary damage claimed by the applicant therefore does not fall within the scope of protection of this standard.
53 The same applies to Section 823 II BGB i.V.M. §§ SECTIONS 6, 27 OF THE EC TREATY. For regardless of whether the 2nd defendant has violated these regulations, they lack the protective character required by § 823 II BGB. According to the established case law of the Federal Court of Justice, a norm is to be regarded as a protective law if, according to its purpose and content, it is at least also intended to protect the individual or individual groups of persons against the infringement of a specific legal interest. For this purpose, it is not the effect, but the content and purpose of the law that is important, as well as whether the legislator, when enacting the law, intended, or at least shared in the intention, of providing legal protection, such as is claimed on account of the alleged infringement, for the benefit of individuals or certain groups of persons. In the case of provisions that transpose directives – as in the case of the EG-FGV – the content and purpose of the directive – in this case Directive 2007/46/EC – is decisive in this respect according to the required interpretation in conformity with the directive. According to recitals (2), (4) and (23), the purpose of Directive 2007/46/EC is the completion of the internal market and its proper functioning. In addition, the technical requirements are to be harmonized and specified in legal acts, whereby the legal acts are primarily aimed at a high level of traffic safety, a high level of health and environmental protection, the rational use of energy and effective protection against unauthorized use. On the other hand, there is no indication that the directive's issuer also intended to protect the individual vehicle purchaser or user. -owner against property impairments in view. Also, the national legislator, in the explanatory memorandum to the EC TPA (S. 36 of the BR-Print. 190/09) in accordance with the fact that the Directive is intended to reduce barriers to trade and to achieve the internal market of the Community, and that the EC TPL is also intended to contribute to the simplification of legislation and the reduction of bureaucracy.
54 Insofar as the. Plaintiff based its claim for damages on § 823 II BGB i.V.M. § Section 16 UWG is based on the protection of the consumer. However, it is not evident that the defendant to 2) i.S.V. § 16 I UWG intended to create the appearance of a particularly favorable offer. The essence of the plaintiff's allegation is that the defendant to 2) advertised compliance with the limit values of the Euro standard. However, all comparable vehicles on the market had to comply with this. Thus, no particular advantage would be touted.
55 Whether § 4 no. 11 UWG as amended on 03.03.2010 also a protective law i.S. Of § 823 para. 2 BGB (German Civil Code), can be left aside here, because the 2nd defendant has in any case not violated regulations, compliance with which is required by § 4 no. 11 a.F. UWG protects. §§ 1, 4, 5 Pkw-EnVKV only require that the fuel consumption and emission values achieved in the type approval procedure are to be mentioned (cf. Definitions in § 2 no. 5 u. 6 Passenger Car EnVKV). However, the applicant itself does not doubt that the above values were obtained in the type approval procedure (NEDC driving curves).
56 a) For liability under § 826, only a possible violation of Regulation (EC) No. 715/2007 not out. On the contrary, the Federal Court of Justice decided as early as 1985 (judgement of 11.11.1985 – II ZR 109/84, juris marginal no. 15 m.W.N.) that it is generally true for claims in tort that the liability to pay compensation is limited to such damages as fall within the scope of protection of the infringed prohibition or rule, and that such a limitation of liability, in order to keep the risk of liability within appropriate and reasonable limits, cannot be dispensed with even in the context of § 826. As already explained, however, the EC Regulation does not serve the protection of individual pecuniary interests. This means that there is at most a deception through concealment of an inadmissible defeat device. However, the concealment of a fact does not justify the accusation of a breach of morality without further ado, but only if one side is obligated to the other to make the corresponding disclosure. A duty of disclosure arises if the other side could expect a communication in good faith with regard to the custom of the trade. Even within a contractual relationship, the contracting party is entitled in good faith to. Do not expect full information about all aspects of the transaction. There is no general duty of disclosure because in contract law each subject of private law is initially responsible for defending its own interests. This applies in particular to the purchase agreement, which is characterized by conflicting interests. The limit of what is acceptable according to the prevailing view of the market is only exceeded, even in the context of Section 826 of the German Civil Code (BGB), if significant value-creating circumstances are involved in the conclusion of the purchase agreement. As already explained in connection with the guarantor position (§ 823 II BGB i.V.M. § 263 StGB), this does not apply, on the one hand, to the use of an impermissible defeat device and, on the other hand, to the second defendant standing outside a contractual relationship with the plaintiff.
57 b) Liability in tort under Section 826 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) is also ruled out because the plaintiff has not sufficiently substantiated that, at the time the purchase agreement was concluded, members of the defendant's Management Board were aware of the allegedly installed manipulation software.
58 aa) However, this would have been necessary in order to be able to establish liability on the part of the second defendant. It is in fact liable according to. § Section 31 BGB only applies to the conduct of members of the Board of Management. Substantiated submissions by the plaintiff, supported by offers of evidence, as to which member of the Board of Management (to be named) was responsible at the time relevant here (conclusion of purchase agreement on 05.08.2016) of which processes, however, did not take place. This is indispensable, however, because it cannot be dispensed with to determine whether the then board of directors of the defendant (or another constitutional representative i.S.D. § 31 BGB) has realized the objective and subjective requirements of § 826 BGB (BGH v. 28.06.2016, VI ZR 536/15 – NJW 2017, 250 para. 27). In contrast, the view that visibly prevails with the plaintiff is incorrect (application S. 31 et seq.), all knowledge somehow existing with all employees of the second defendant or even of other companies somehow affiliated with the … Group is to be added together at the second defendant. This is not compatible with the wording of the law.
59 bb) The plaintiff has admittedly submitted that the former … Whom it names as a witness was aware of this at the time of the manipulations. This may be true. However, at the oral hearing on 31 December 2009, the court found that the …01.2019 pointed out that it is known to the court that the witness … Had already resigned from the Board of Management of the second defendant in 2015, i.E. Already before the conclusion of the purchase agreement here; significantly, the Exhibit K 27 submitted by the plaintiff shows Mr. … As a member of the Supervisory Board of the defendant, but as … Of … AG, but not of the defendant. For the exceptional case that also supervisory board members can justify a liability of the enterprise in connection with § 31 BGB (BeckOGK/Offenloch, BGB, § 31 Rn. 44), the plaintiff has not submitted anything. The fact that the knowledge of Mr. … (how and with whom specifically?) would have remained on the Board of Management until the relevant date here 05.08.2016, the plaintiff has not claimed either.
60 cc) Knowledge of persons who were active in other companies, such as the named witnesses … Or … From … AG, is irrelevant from the outset. The same applies to persons who were members of the board of directors of the engine manufacturer, … AG, or who even only worked for this board of directors. It is not clear why the 2nd defendant should be liable for errors made by … Employees – assumed here in favor of the plaintiff. The mere assertion of the plaintiff that the … Engines should have been adjusted for … Does not establish why knowledge of … Should be attributable to the defendant, nor that knowledge of … Would have become positive knowledge of members of the defendant's management board. That "as a matter of course" the exhaust gas problem had also been reported to the defendant's board of management (statement of claim S. 37), is an assertion that is not supported by any evidence and is obviously made in the dark.
61 Also a liability of the defendant from § 831 BGB does not come into consideration. It is true that § 831 BGB represents an independent basis for liability, which occurs alongside other tortious liability (Palandt/Sprau, BGB, 77., Aufl., § 831 Rn. 2). However, the defendant also correctly objects in this respect that the plaintiff has not made any relevant submission as to which exact employee to be named is alleged to have committed exactly which tortious act to the detriment of the plaintiff on the instructions of exactly which member of the Board of Management; it would furthermore have been necessary to submit, with regard to the employee to be named in his person, the realization of all objective and subjective elements of an unlawful act. This did not happen.
62 A liability of the defendant is therefore already excluded on the merits, so that also the claims according to. Points 3 and 4 of the claims were to be dismissed.