GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
2.16 Existence of Class Actions, Representative Proceedings or Co- Ordinated Proceedings in Product Liability Claims The VDuG came into force in Germany on 13 October 2023. It implements Directive (EU) 2020/1828 on representative actions for the protection of consumers’ collective interests. The VDuG introduced a new type of representa - tive action for civil proceedings in Germany: the redress action ( Abhilfeklage ). Qualified con - sumer associations can use this action to assert similar claims on behalf of consumers. To do so, the consumer association must credibly demon - strate that the claims of at least 50 consumers are affected. In the redress action, the payment of a collec - tive total amount is claimed. If the court deems the claim to be valid, it will issue a basic redress judgment. This is followed by a phase in which the parties are encouraged to reach a settlement agreement. If a settlement fails, the court will order an implementation procedure, in which the judgment will be implemented with the help of a trustee and payments will be made to consum - ers who joined the lawsuit. There is also a model declaratory action ( Mus- terfeststellungsklage ) option in Germany. It was introduced in 2018 due to the large number of consumers affected by the diesel emissions issue and integrated into the VDuG in 2023. The purpose of the model declaratory action is to determine whether the factual or legal prereq - uisites for claims exist or not. A settlement can therefore be reached or the consumers must individually enforce the payment of compensa - tion of a certain amount. Finally, the so-called assignment model is used in Germany to deal with a large number of claim -
ants. In this model, claimants assign their claims to a litigation vehicle, which then brings the claims collectively. 2.17 Summary of Significant Recent Product Liability Claims Over the last ten years, the issue of diesel emis- sions has occupied practically every court in Germany. Vehicle owners have brought tort claims against various manufacturers relating to the emissions of their cars. A series of judg - ments on various issues have now been issued by the BGH. In cases where the courts con - cluded that manufacturers had installed “defeat device” in vehicles that differentiated between tests and road operations, the manufacturers were ordered to reverse the respective purchase contracts due to intentional immoral damage. On 26 June 2023, the BGH (case numbers VIa ZR 335/21, VIa ZR 533/21 and VIa ZR 1031/22) ruled that the negligent use of illegal “defeat devices” could also entitle vehicle owners to compensation. This would be assessed at a lump sum of 5% to 15% of the purchase price. This method of calculating damages was previ - ously unknown in German tort law. In recent years, several claims for damages have also been made against manufacturers of COV - ID-19 pandemic vaccines due to alleged vac - cine-related health issues. These lawsuits have so far been unsuccessful as claimants have to prove that their health issues are actually caused by the vaccine and not other factors. Secondly, they have to prove that the manufacturer pro - vided incorrect information at the time of vac - cination. Alternatively, they have to challenge the decision to authorise the vaccine, ie, dem - onstrate that the risk to the general public from the vaccination outweighed the benefits. This is also very difficult, which is why the chances of
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