Judgment;Summary — ECLI:EU:C:2025:604
Date: 2025-08-01
Language of the case: German
Court formation: Fifth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-666/23 – 1 
Case C-666/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 November 2023 
Referring court: 
Landgericht Ravensburg (Germany) 
Date of the decision to refer: 
27 October 2023 
Applicants: 
EL 
CM 
BT 
JF 
DS 
Defendant: 
Volkswagen AG 
  
Subject matter of the main proceedings 
Regulation (EC) No 715/2007 – Diesel-powered vehicle – Exhaust gas 
recirculation – Temperature window – Hypothetical approval – Compensation – 
Calculation 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-666/23 
 
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Questions referred for a preliminary ruling 
1. Can the vehicle purchaser’s right to compensation against the vehicle 
manufacturer for the negligent placing on the market of a vehicle 
equipped with a prohibited defeat device within the meaning of 
Article 5(2) of Regulation (EC) No 715/2007 [of the European 
Parliament and of the Council of 20 June 2007 on type approval of 
motor vehicles with respect to emissions from light passenger and 
commercial vehicles (Euro 5 and Euro 6) and on access to vehicle 
repair and maintenance information (OJ 2007 L 171, p. 1)] be refused 
on the grounds 
a) that there was an unavoidable error on the part of the 
manufacturer as regards the wrongful nature of the act? 
if the answer is yes: 
b) that the error as regards the wrongful nature of the act was 
unavoidable for the manufacturer because the authority 
responsible for EC type-approvals or for subsequent measures 
actually authorised the installed defeat device? 
if the answer is yes: 
c) that the error as regards the wrongful nature of the act was 
unavoidable for the manufacturer since the vehicle 
manufacturer’s legal interpretation of Article 5(2) of Regulation 
(EC) No 715/2007 would have been confirmed by the authority 
responsible for EC type-approvals or for subsequent measures 
(hypothetical approval)? 
2. Is the vehicle manufacturer who supplied a software update liable to 
pay compensation to the vehicle owner if the latter suffers a loss or 
damage as a result of a prohibited defeat device within the meaning of 
Article 5(2) of Regulation (EC) No 715/2007 installed with the 
software update? 
3. Is it compatible with EU law if, in the case of a right to compensation 
against the vehicle manufacturer for the negligent placing on the 
market of a vehicle equipped with a prohibited defeat device within the 
meaning of Article 5(2) of Regulation (EC) No 715/2007 
a) the purchaser of the vehicle must allow the offsetting of the 
benefits derived from the use of the vehicle against the amount of 
compensation in their claim for ‘minor compensation’, where the 
benefits derived from the use, together with the residual value, 
exceed the purchase price paid less the amount of compensation? 
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b) the vehicle purchaser’s claim for ‘minor compensation’ is limited 
to a maximum of 15% of the purchase price paid? 
Provisions of European Union law relied on 
Regulation (EC) No 715/2007 of the European Parliament and of the Council of 
20 June 2007 on type approval of motor vehicles with respect to emissions from 
light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to 
vehicle repair and maintenance information (OJ 2007 L 171, p. 1), in particular 
Article 5(2) 
Provisions of national law relied on 
Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), particularly 
Paragraphs 276, 823, 826 
Verordnung über die EG-Genehmigung für Kraftfahrzeuge und ihre Anhänger 
sowie für Systeme, Bauteile und selbstständige technische Einheiten für diese 
Fahrzeuge (EG-Fahrzeuggenehmigungsverordnung) (Regulation on EC approval 
for motor vehicles and their trailers, and for systems, components and separate 
technical units intended for such vehicles [EC Vehicle Approval Regulation], ‘the 
EG-FGV’), particularly Paragraphs 6 and 27 
Succinct presentation of the facts and procedure in the main proceedings 
1 The request for a preliminary ruling is based on five different cases which, 
although not identical, only differ in terms of certain nuances. 
2 First proceedings: the VW T6 Multivan Comfortline 2.0 TDI was put on the 
market by the defendant with a type EA288 diesel engine. Exhaust gas 
recirculation is reduced in the vehicle outside of what is called a ‘temperature 
window’ based on falling ambient temperatures. That results in higher NOx (= 
nitrous oxide) emissions during vehicle operations outside of the temperature 
window. The applicant purchased the car from the defendant for EUR 45 944,39. 
He made a down-payment of EUR 15 000 and took out a loan to finance the rest. 
In the meantime, he has sold the car. 
3 The applicant considers himself to have suffered loss or damage inflicted 
intentionally and in a manner offending common decency. He considers the 
temperature window to be a prohibited defeat device and claims that the reduction 
in exhaust gas recirculation starts at a temperature of +20 °C. The applicant is 
seeking payment of EUR 8 709.30 (purchase price of EUR 45 944.39 less a 
benefit of use amounting to EUR 10 245.60 for 66 900 km driven and sales 
proceeds of EUR 31 000 plus financing costs of EUR 4 010.51), and alternatively 
payment of EUR 6 891.66 (= 15% of the purchase price). 
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4 The defendant applies for the action to be dismissed. The defendant pleads that the 
contractual claims have become time-barred. With regard to the temperature 
window, the defendant claims that exhaust gas recirculation is gradually reduced 
once the ambient temperature falls to around +12 °C. The defendant considers the 
temperature window to be permissible because it is necessary for the safe 
operation of the vehicle. By way of precaution, the defendant asserts an 
unavoidable error as regards the wrongful nature of the act and relies on a 
hypothetical approval by the Kraftfahrt-Bundesamt (Federal Office for Motor 
Vehicles, Germany). 
5 Second proceedings: the VW T6 Multivan 2.0 TDI was put on the market with a 
type EA288 diesel engine manufactured by the defendant. The applicant 
purchased the vehicle with an odometer reading of 9 350 km for EUR 49 950. It is 
undisputed that a test bench detection system was present when the applicant 
purchased the vehicle, but that it was removed in a software update on 10 October 
2017. It is also undisputed that a temperature window was (and is) present. That 
results in higher NOx emissions during vehicle operations outside of the 
temperature window. 
6 The applicant considers himself to have suffered loss or damage inflicted 
intentionally and in a manner offending common decency due to the existence of 
prohibited defeat devices. He demands payment of EUR 8 938 (= 20% of the 
gross purchase price) and alternatively compensation at the discretion of the court, 
but no less than EUR 6 703.50 (= 15% of the purchase price). 
7 The defendant concedes that the originally installed test bench detection system 
was used by the software to reduce the exhaust gas recirculation rate outside the 
NEDC upon reaching an operating temperature of 200 °C. However, above that 
operating temperature, the SCR system contributes significantly to a reduction in 
NOx which means that the tolerance limits are still complied with. With regard to 
the temperature window, the defendant contends that a reduction occurs below an 
ambient temperature ‘of approx. +12 °C’. The defendant considers the 
temperature window to be permissible because it is necessary for the safe 
operation of the vehicle. By way of precaution, the defendant asserts an 
unavoidable mistake of law and relies on a hypothetical approval by the 
Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles). 
8 Third proceedings: the facts of the third proceedings are essentially the same as 
those in the second proceedings. 
9 Fourth proceedings: the vehicle VW Golf 2.0 TDI was put on the market with a 
type EA288 diesel engine manufactured by the defendant. It is undisputed that a 
test bench detection system was present. The applicant purchased the vehicle with 
an odometer reading of 107 000 km for EUR 10 000. 
10 The applicant considers herself to have suffered loss or damage inflicted 
intentionally and in a manner offending common decency. She considers the 
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functionality of the test bench detection system to be prohibited and contends that 
there is also a prohibited temperature window. The applicant demands payment of 
EUR 9 258,60 (purchase price of EUR 10 000 less compensation for use 
amounting to EUR 741,40 for the 14 309 km driven at the time the action was 
filed) in return for the handover of and transfer of ownership in the vehicle and 
alternatively compensation amounting to EUR 1 500 (= 15% of the purchase 
price). 
11 The defendant applies for the action to be dismissed. The defendant concedes that 
the test bench detection system is used by the software to ensure that the NSCC 
(=NOx storage catalytic converter) regenerates completely before a test drive and 
regenerates at precisely defined points within the NEDC. In addition, the 
temperature of the NSCC within the NEDC is increased immediately before the 
first NSCC regeneration. However, none of that has any measurable effect on 
NOx emissions. Even if the NOx emissions were increased without that 
functionality, the tolerance limits would not be exceeded. The defendant considers 
the temperature window to be permissible. In that regard, the defendant claims 
that the exhaust gas recirculation is 100% active between -24 °C and +70 °C due 
to the very advanced exhaust gas recirculation system. By way of precaution, the 
defendant asserts an unavoidable mistake of law and relies on a hypothetical 
approval by the Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles). 
12 Fifth proceedings: the vehicle VW Sharan 2.0 TDI was put on the market with a 
type EA288 diesel engine manufactured by the defendant. The engine was 
equipped with a prohibited defeat device (test bench detection system with a 
‘switch logic’). By orders dated 14 and 15 October 2015, the Kraftfahrt-
Bundesamt (Federal Office for Motor Vehicles) ordered the defendant to remove 
that prohibited defeat device in the vehicles it had placed on the market. The 
applicant purchased the vehicle with an odometer reading of 14 915 km for 
EUR 32 000. A software update developed by the defendant and approved by the 
Kraftfahrt-Bundesamt (Federal Office for Motor Vehicles) was installed in the 
vehicle on 7 March 2017. By way of the update, a temperature window was 
installed in the vehicle. That leads to higher NOx emissions during vehicle 
operation outside of the temperature window. 
13 The applicant considers himself to have suffered loss or damage caused by the 
defendant intentionally and in a manner offending common decency. He demands 
payment of compensation at the discretion of the court, but no less than 
EUR 4 800 (= 15% of the purchase price), and for the court to find that the 
defendant shall compensate the applicant for the loss and damage suffered by the 
applicant as a result of the installation of a temperature-controlled defeat device. 
14 The defendant applies for the action to be dismissed. By way of precaution, the 
defendant pleads that the claim has become time-barred. With regard to the 
temperature window, the defendant claims that exhaust gas recirculation is only 
reduced below +10 °C. It claims that is necessary for the safe operation of the 
vehicle. The defendant further argues that, although the judgment of the Court of 
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Justice of 14 July 2022, GSMB Invest, C-128/20, EU:C:2022:570, assumed a 
temperature range of the temperature window of between +15 °C and +33 °C 
‘ambient temperature’ for vehicles of the defendant with an identical temperature 
window (following an update of the engine control unit for the engine type 
EA189). In the view of the defendant, however, that is due to binding findings of 
fact by the referring courts, which do not reflect the actual circumstances. By way 
of precaution, the defendant asserts an unavoidable mistake of law and relies on a 
hypothetical approval by the Kraftfahrt-Bundesamt (Federal Office for Motor 
Vehicles). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 Introductory remarks: in each of the first, second and third proceedings, a 
prohibited defeat device within the meaning of Article 5(2) of Regulation 
No 715/2007 was probably present when the vehicle was purchased. In the fifth 
proceedings, a prohibited defeat device was installed by way of the update. In the 
fourth proceedings, the test bench detection system is a strong indication of the 
existence of a prohibited defeat device. 
16 In the case of the vehicles in the first, second, third and fifth proceedings, exhaust 
gas recirculation is reduced no later than once the ambient temperature falls to 
+10 °C and, in the view of the referring court, there is therefore a prohibited 
temperature window that does not fall within the lawful exceptions under 
Article 5(2)(a) of Regulation No 715/2007. 
17 Furthermore, in the first, second and third proceedings, the additional criterion of 
Article 5(2) sentence 2(a) of Regulation No 715/2007 that a defeat device must 
not operate for most of the year is probably also not fulfilled given that the 
exhaust gas recirculation in the vehicles in the aforementioned three proceedings 
is reduced no later than once the ambient temperature falls to approx. 
+12 °C. However, the average annual temperatures in Germany are lower than 
approx. +12 °C. 
18 In the fourth proceedings, it is disputed whether the temperature window and/or 
the test bench detection system lead to an increase in emissions under normal 
driving conditions. It is therefore not clear in those proceedings whether they 
involve a prohibited defeat device within the meaning of Article 3 no 10, 
Article 5(2) sentence 1 of Regulation No 715/2007 even if the test bench detection 
system is a strong indication of that. 
19 A right to compensation under Paragraph 826 of the BGB requires that the 
tortfeasor has acted intentionally and in a manner offending common decency. 
However, that is unlikely to apply to the cases referred. 
20 In the cases referred, however, the vehicle purchaser may have a right to 
compensation in accordance with Paragraph 823(2) of the BGB. According to 
recent case-law of the Bundesgerichtshof (Federal Court of Justice, Germany), 
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Paragraph 823(2) of the BGB in conjunction with Paragraphs 6(1), 27(1) of the 
EG-FGV protects the interest of a vehicle purchaser not to suffer any financial 
loss due to an infringement of European emissions law by the manufacturer. 
21 In the first, second, third and fifth proceedings, the defendant is in breach of 
European emissions law in the form of a prohibited temperature window, and in 
the fourth proceedings there is strong evidence of that in the form of a test bench 
detection system. 
22 The right to compensation also requires that the vehicle manufacturer has acted at 
least negligently with regard to the defeat device. It is presumed that the vehicle 
manufacturer is at fault. The manufacturer may, however, exonerate itself by 
demonstrating and proving circumstances which, exceptionally, make its conduct 
appear not negligent. In particular, according to the case-law of the 
Bundesgerichtshof (Federal Court of Justice), the manufacturer can invoke an 
unavoidable error as regards the wrongful nature of the act by specifically 
demonstrating and proving an error as regards the wrongful nature of the act as 
such and also its unavoidability. That is the subject of the first question referred. 
23 In the fifth proceedings, the right to compensation due to the defeat device (the 
test bench detection system with ‘switch logic’), which was present when the 
vehicle was placed on the market and purchased, has become time-barred. 
However, after installation of the update supplied by the defendant in the form of 
the temperature window, the vehicle is equipped with a new prohibited defeat 
device. It is uncertain, whether the vehicle owner is entitled to claim 
compensation from the manufacturer if they suffer a loss or damage because of a 
defeat device installed by way of an update. That is the subject matter of the 
second question referred. 
24 According to the case-law of the Bundesgerichtshof (Federal Court of Justice), the 
right to compensation pursuant to Paragraph 823(2) of the BGB in conjunction 
with Paragraphs 6(1), 27(1) of the EG-FGV is a claim for ‘minor compensation’, 
namely for payment of a sum of money. Reimbursement of the purchase price in 
return for surrender and transfer of ownership of the vehicle (‘major 
compensation’) cannot be claimed. In addition, the Bundesgerichtshof (Federal 
Court of Justice) stipulates that the benefits of the use of the vehicle must be taken 
into account if those, together with the residual value, exceed the purchase price 
paid less the amount of compensation. Those are the issues raised in the third 
question referred. 
25 The questions referred in detail: the first question: an exclusion of liability due to 
an error as regards the wrongful nature of the act only arises in rare exceptional 
cases. Ignorance does not exempt from liability. Even an incorrect prediction 
about what a court will find to be negligent in potential liability proceedings does 
not give rise to an error as regards the wrongful nature of the act that would 
exclude liability. The tortfeasor must always expect that a court will find that the 
precautionary measures taken by them to be inadequate. An unavoidable error as 
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regards the wrongful nature of the act only exists if a reasonable person could not 
have expected that their behaviour could be judged by a court in the future to be in 
breach of duty. 
26 According to the case-law of the Bundesgerichtshof (Federal Court of Justice), the 
manufacturer’s error specifically relating to a defeat device is considered 
unavoidable if a vehicle manufacturer presents an actual EC type-approval for the 
prohibited defeat device used in all its relevant details in accordance with 
Article 5(2) of Regulation No 715/2007. However, the error is also considered 
unavoidable if it has been established that the manufacturer’s incorrect legal 
opinion regarding the existence of an unauthorised defeat device would have been 
confirmed by the authority responsible for EC type-approval or for subsequent 
measures (in Germany, the Kraftfahrt-Bundesamt [Federal Office for Motor 
Vehicles]), that is to say in the event of a hypothetical approval. 
27 It is doubtful that that national case-law is in line with EU law given that the 
prohibition of defeat devices is governed by EU law. The right of a vehicle 
purchaser to appropriate compensation for the purchase of a vehicle equipped with 
a prohibited defeat device is also enshrined in EU law (judgment of 21 March 
2023, Mercedes-Benz Group [Liability of manufacturers of vehicles with defeat 
devices], C-100/21, EU:C:2023:229, paragraph 91). The Member States only lay 
down the rules under which purchasers may obtain such compensation. 
28 The question therefore arises as to what requirements EU law places on the 
subjective conditions for a right to compensation by the vehicle purchaser against 
the vehicle manufacturer for infringement of Articles 18(1), 26(1) and 46 of 
Directive 2007/46; Article 5(2) of Regulation No 715/2007. 
29 First of all, it is doubtful whether, when it comes to liability for tort as in the 
present case, fault is relevant at all. In various areas of EU law, the Court of 
Justice has already ruled on the requirement of fault in non-contractual liability 
(see judgments of 8 November 1990, Dekker, C-177/88, EU:C:1990:383, 
paragraphs 22 to 25; of 30 September 2010, Strabag and Others, C-314/09, 
EU:C:2010:567, paragraph 39 et seq.; of 9 December 2010, Combinatie Spijker 
Infrabouw-De Jonge Konstruktie and Others, C-568/08, EU:C:2010:751, 
paragraph 86 et seq.; and of 18 June 2013, Schenker & Co. and Others, C-681/11, 
EU:C:2013:404, paragraph 35). 
30 Since the proceedings referred to only concern the liability under civil law of the 
vehicle manufacturer, there is much to suggest that fault is not relevant. If the 
right to compensation against the vehicle manufacturer in the event of an 
infringement of Articles 18(1), 26(1), 46 of Directive 2007/46, Article 5(2) of 
Regulation No 715/2007 were based on fault, the question would have to be 
answered as to whether the unavoidability of an error as regards the wrongful 
nature of the act can be inferred from information or approval by the authority 
responsible for EC type-approval or for subsequent measures (question 1(b) 
referred). If the principles of the judgment of 18 June 2013, Schenker & Co. and 
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Others, C-681/11, EU:C:2013:404, were to be applied in that respect, an approval 
or information from the authority responsible for EC type-approval or subsequent 
measures would be irrelevant. A manufacturer would have to expect that the Court 
of Justice would assess the lawfulness of a defeat device under Article 5(2) of 
Regulation No 715/2007 differently than the competent authority. 
31 And even if an approval by the authority responsible for the EC type-approval or 
for subsequent measures should justify the vehicle manufacturer’s good faith that 
the authority will not take any measures against it, it is unclear whether the 
manufacturer can also rely on that good faith in relation to the vehicle purchasers. 
Furthermore, the principle of effectiveness is an argument in favour of the 
manufacturer not enjoying protection of legitimate expectations in relation to the 
purchaser. Otherwise, an infringement of EU law by the manufacturer would 
remain without sanction if the infringement is based on an incorrect assessment by 
the competent authority. That would be contrary to the requirement that the 
sanctions for non-compliance with the provisions of the Directive must be 
effective, proportionate and dissuasive (judgment of 21 March 2023, Mercedes-
Benz Group [Liability of manufacturers of vehicles with defeat devices], 
C-100/21, EU:C:2023:229 paragraphs 85, 88). 
32 If the approval or information provided by the authority responsible for EC type-
approval or for subsequent measures would give rise to a legitimate expectation 
on the part of the car manufacturer that it is acting lawfully, the question arises as 
to whether a hypothetical approval has the same effect (question 1(c) referred). In 
Schenker, the Court of Justice ruled that no one can plead breach of the principle 
of legitimate expectations unless he has been given precise assurance by the 
competent authority (judgment of 18 June 2013, Schenker & Co. and Others, 
C-681/11, EU:C:2013:404, paragraph 41). In addition, Advocate General Kokott 
stated in that case that the minimum requirement for the recognition of legitimate 
expectations is that the administrative or judicial decision must concern exactly 
the same matters of fact and law in respect of which the undertaking concerned 
invokes an error as regards the wrongful nature of the act precluding liability and 
that only statements made by the authority or the court which are expressly 
contained in the relevant decision may be invoked and not other conclusions 
which may possibly be inferred implicitly from it (Opinion of Advocate General 
Kokott in Schenker and Others, C-681/11, EU:C:2013:126, point 91). In the case 
of a hypothetical approval or information, that is to say in the hypothetical case of 
an enquiry, that requirement would not be met because in that case there is a lack 
of explicit and precise statements by an authority on a specific set of facts. 
33 The principle of effectiveness is another argument against the consideration of a 
hypothetical approval. If a Member State were to allow the vehicle manufacturers 
to rely on an unavoidable error as regards the wrongful nature of the act, the 
injured parties would not receive any compensation. The appropriateness of the 
amounts of compensation and also a dissuasive effect of the sanctions in the event 
of infringements, as deemed necessary by the Court of Justice, would not be 
guaranteed. 
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34 Questions 1(a) to (c) referred have a bearing on the decision in all the legal 
disputes referred for a preliminary ruling. If one of the questions in answered in 
the negative, a hypothetical approval by the Kraftfahrt-Bundesamt (Federal Office 
for Motor Vehicles) would be irrelevant for the vehicle purchaser’s compensation 
claims under civil law against the manufacturer. 
35 The second question: that question only applies to the fifth proceedings. If it is 
answered in the affirmative, the applicant is, in principle, entitled to claim 
compensation. 
36 It is uncertain whether the vehicle manufacturer who has supplied a software 
update with a prohibited defeat device in accordance with Article 5(2) of 
Regulation No 715/2007 must pay compensation to the vehicle owner if the latter 
suffers loss or damage as a result of the prohibited defeat device installed by way 
of the update. 
37 In those cases, German law denies that a law protecting a third party has been 
infringed as the infringement lies in the issue of an incorrect certificate of 
conformity by the vehicle manufacturer. However, no new certificate of 
conformity is issued on occasion of the update. The update is therefore not a 
suitable connecting factor for liability of the vehicle manufacturer for 
compensation pursuant to Paragraph 823(2) of the BGB in conjunction with 
Paragraphs 6(1), 27(1) of the EG-FGV. Furthermore, it is argued that the loss or 
damage that gives rise to liability occurs when the unwanted purchase contract is 
concluded. Any subsequent measures, such as the update, could no longer have 
been the reason for the purchase decision. 
38 Under EU law, however, it may be necessary for the vehicle owner to have a right 
to compensation in such a case. That is supported by the fact that the manufacturer 
creates an unlawful situation by supplying and installing the update, which 
contradicts the certificate of conformity. In the same way as when a vehicle 
equipped with a prohibited defeat device is placed on the market, an update with a 
prohibited defeat device may result in a ban on operation by the competent 
authority. According to the referring court, the manufacturer’s attributable 
conduct that gives rise to liability is the supply and installation of the prohibited 
temperature window. That is the relevant starting point for liability on the part of 
the vehicle manufacturer, and not the issue of an incorrect certificate of 
conformity or a subsequent purchase decision. The inaccuracy of the certificate of 
conformity is only one inevitable consequence of the installation of the prohibited 
defeat device, and another possible consequence is the purchase decision of a 
purchaser in reliance on the accuracy of the certificate of conformity. 
39 It cannot be a determining factor that no new certificate of conformity is issued on 
the occasion of the update. Pursuant to Paragraph 3(6) of the EG-FGV in 
conjunction with Article 3 no 36 of Directive 2007/46, that certificate is issued by 
the manufacturer to certify that a vehicle belonging to the series of the type 
approved in accordance with that Directive complied with all regulatory acts at the 
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time of its production. The certificate of conformity is valid for the entire service 
life of the vehicle. If the manufacturer subsequently changes the condition of the 
vehicle in a prohibited manner, that certificate inevitably becomes inaccurate. 
40 The third question: in the event of only negligent loss or damage, the 
Bundesgerichtshof (Federal Court of Justice), rules out a claim by the purchaser 
against the manufacturer for reimbursement of the purchase price in return for 
surrender of the vehicle (‘major compensation’) because the purchaser’s right to 
economic self-determination is only protected in the event of loss or damage 
inflicted in a manner offending common decency, but not in the event of loss or 
damage caused by mere negligence. The Bundesgerichtshof (Federal Court of 
Justice) regards the interest of the purchaser, which is protected under EU law, to 
be not to suffer a financial loss within the meaning of the ‘differential hypothesis’ 
in German civil law (Differenzhypothese) and, pursuant to Paragraph 823(2) of the 
BGB in conjunction with Paragraphs 6(1), 27(1) of the EG-FGV, only grants the 
purchaser a claim for ‘minor compensation’, namely only a monetary claim. 
41 According to the Bundesgerichtshof (Federal Court of Justice), the trial judge 
must estimate the amount of the differential damage, taking into account all the 
circumstances, at their own discretion. It should be noted that the estimated loss or 
damage must be at least 5% of the purchase price paid for reasons of effectiveness 
under EU law, but may not exceed 15% of the purchase price paid for reasons of 
proportionality. The benefits of use and the residual value of the vehicle should be 
taken into account to reduce the loss or damage suffered to the extent that they 
exceed the value of the vehicle at the time the purchase contract is concluded 
(purchase price paid less the amount of compensation). In the view of the 
Bundesgerichtshof (Federal Court of Justice), that is in line with EU law, taking 
into account the requirement for effective and dissuasive sanctions. 
42 However, it is doubtful whether the offsetting of benefits of use against the 
amount of compensation complies with EU law. If, in accordance with the 
Bundesgerichtshof (Federal Court of Justice), the injured purchaser had to deduct 
the benefits of use from the claim for ‘minor compensation’, they would receive 
less compensation depending on the intensity of use of the vehicle. There is no 
objective reason for that. Purchasers do not enrich themselves if they use their 
own vehicle. It therefore appears to be arbitrary to curtail the loss or damage 
suffered based on the intensity of use. 
43 It is true that it is required under EU law that a purchaser must allow the 
kilometres driven to be taken into account when asserting a claim for ‘major 
compensation’, namely a claim for reimbursement of the purchase price in return 
for the surrender of the vehicle. Advocate General Rantos considers it necessary 
in that constellation to offset the benefits of the actual use of the vehicle in 
question against the reimbursement of the purchase price, since the protection of 
the rights guaranteed by Directive 2007/46 should not result in an unjust 
enrichment (Opinion of Advocate General Rantos in Mercedes-Benz Group 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-666/23 
 
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[Liability of manufacturers of vehicles with defeat devices], C-100/21, 
EU:C:2022:42061, point 61 et seq.). 
44 However, according to the view expressed herein, that cannot apply if the 
purchaser only claims ‘minor compensation’ because the purchaser retains 
ownership of the vehicle. The use of the vehicle is for the purchaser’s own 
account, the vehicle depreciates in value. The purchaser does not enrich 
themselves by using the vehicle. Offsetting benefits of use against ‘minor 
compensation’ is also likely to lead to unreasonable results and thus infringes the 
principle of effectiveness. Advocate General Rantos emphasises that the offsetting 
must not result in the purchaser ultimately obtaining no compensation for the 
damage suffered (point 62). However, that would be the case according to the 
offsetting method used by the Bundesgerichtshof (Federal Court of Justice) if a 
purchaser had made intensive use of their vehicle at the time of the court decision. 
45 Furthermore, the blanket limitation of the differential damage to a maximum 
amount of 15% of the purchase price according to the case-law of the 
Bundesgerichtshof (Federal Court of Justice) is likely to be contrary to EU law 
because it runs counter to the principle of effectiveness as the reduced value of the 
vehicles due to the installed defeat device will often be higher than 15% of the 
purchase price. However, the Federal Court of Justice’s schematic upper limit of 
15% does not allow national courts to take that into account. It should also be 
borne in mind that, according to the Bundesgerichtshof (Federal Court of Justice), 
the purchaser can only demand financial compensation for the loss or damage, but 
must keep the vehicle. If that monetary claim is then limited to an amount of 15% 
of the purchase price, the interest of the vehicle purchaser in reasonable 
compensation cannot be adequately taken into account. 
46 If question 3(a) is answered in the negative, then benefits of use, in so far as they 
exceed the value of the vehicle at the time the purchase contract is concluded 
(purchase price less amount of compensation), would not be taken into account in 
the main proceedings. The intensity of vehicle use and the residual value would 
not be relevant. 
47 If question 3(b) is answered in the negative, higher amounts than 15% of the 
purchase price could be awarded as compensation in the second and fourth 
proceedings, in which the amount of compensation is left to the discretion of the 
court. In the first proceedings, in addition to the requested compensation of 15% 
of the purchase price, the financing costs could be awarded as a further item of 
loss because financing costs are generally eligible for compensation.