On 13 June 2022, the Federal Court of Justice (Bundesgerichtshof) held that the claims assignment model (Sammelklage-Inkasso) is admissible for Swiss purchasers in the so-called Diesel scandal (see the Bundesgerichtshof’s press release of the same day). The decision is a further step after the landmark AirDeal sentencia last year, in which the Bundesgerichtshof fundamentally acknowledged the collective opt-in assignment model, i.e. the transfer of claims for damages of numerous victims of the same infringement to a specialised third party for the purpose of bundling and joint enforcement of all claims. This approach from a procedural economy perspective has become increasingly important all over Europe in recent years, especially in competition law cases. In its Diesel emission case, the Bundesgerichtshof now confirms that the model is also open to purchasers from Switzerland.
In the case at hand, the plaintiff is a debt collection service provider seated in Germany and registered for debt collection services (Inkassodienstleistungen) pursuant to the domestic Legal Services Act (Rechtsdienstleistungsgesetz, ‘RDG’). It bundles claims for damages of thousands of purchasers of cars which have been affected by the so-called Diesel scandal against Volkswagen AG. Each purchaser has assigned his or her damage claims to the plaintiff individually by way of an assignment agreement.
One of the purchasers is a Swiss resident who bought a VW Tiguan from a Swiss authorized dealer of Volkswagen in Switzerland in 2015. A diesel engine of the EA 189 series was installed in the vehicle. The engine was equipped with software that detected whether the vehicle had been subjected to a gas examination on a test bench. In this case, it switched from the regular exhaust gas recirculation mode to a nitrogen oxide-optimized exhaust gas recirculation mode. The German Federal Motor Transport Authority deemed this software to be an illegal defeat device and ordered a recall of the affected vehicles.
In 2017, the purchaser assigned its damage claims resulting from that infringement against Volkswagen AG to the plaintiff for debt collection purposes under section 10(1), sentence 1, no. 1 RDG. The plaintiff initially asserted the claims out of court, and after a failure of such assertion subsequently in court, in its own name and on its own costs. The plaintiff receives a commission in the event of success.
The plaintiff filed a lawsuit for a declaratory judgment with the Regional Court of Braunschweig in 2019. Following an amendment of claim, it sought payment of an amount left to the discretion of the court, but not less than CHF 5,394 (15% of the purchase price as diminished value) plus interest from the date of delivery of the vehicle. The Regional Court dismissed the claim.
The Higher Regional Court of Braunschweig dismissed the plaintiff’s appeal as well.
According to the Braunschweig courts, the plaintiff lacked standing, because the assignment of claims from a Swiss purchaser to a debt collection service provider was invalid under the RDG. For the assertion of a claim subject to Swiss law, the plaintiff would require a licence not only for debt collection services under no. 1 of section 10(1), sentence 1 RDG, but also for legal services in a foreign law under no. 3 of the said provision. However, the plaintiff possessed only the first one. The assumed violation of the RDG would therefore have led to the invalidity of both the debt collection service agreement between the purchaser and the plaintiff and their claim assignment agreement.
Decision of the Supreme Court
The Bundesgerichtshof overruled the judgment by the Higher Regional Court confirming the validity of the assignment by the Swiss purchaser relating to claims governed by Swiss law. According to its press release dated 13 June 2022, the Bundesgerichtshof in its judgment – which is not yet published – proceeds to an interpretation of the RDG based on the wording, the systematics and the meaning and purpose of the RDG as well as to the legislative history. The Bundesgerichtshof holds that a debt collection service provider registered pursuant to no. 1 of Section 10(1) sentence 1 RDG does not require an additional license pursuant to its no. 3, even if it asserts claims which are subject to a foreign substantive law. The Bundesgerichtshof’s 6ath Civil Senate as the Senate of judgment expressly has taken into account the decisions of the 8th and 2nd Civil Senates of 27 November 2019 (VIII ZR 285/18 – LexFox) and 13 July 2021 (II ZR 84/20 – AirDeal) respectively. Further, the Supreme Court makes clear that requiring an additional permit pursuant to no. 3 RDG is not necessary to achieve the protective purpose of the Legal Services Act.
With its recent judgment in the Diesel emission case, the Bundesgerichtshof clarifies one further aspect of the (broad) scope of the registration for ‘debt collection services’ under the RDG. The licence of debt collection service providers registered thereunder encompasses both the bundling of claims and the enforcement of claims which are governed by foreign substantive law. Although the judgment concerns the Diesel emission case, it is as well relevant for the effective private enforcement of competition law. In the latter case, plaintiffs enforcing claims before German courts – i.e. within the scope of application of the RDG – are increasingly bundling claims which have been assigned by companies or natural persons seated in other jurisdictions. However, in particular in the field of competition law it is not always clear from the outset whether the seized German court will at the end not apply uniform German law to the overall claims, e.g. pursuant to Art. 6(3)(b) Rome II Regulation. The recent judgment is in line with the judgments by the Bundesgerichtshof in LexFox and AirDeal, and further strengthens the effective enforcement of competition law across Europe.
By Martin Seegers and Carsten Krüger