The climate lawsuits are coming: Environmental associations sue German companies | Fieldfisher
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The climate lawsuits are coming: Environmental associations sue German companies



In May 2021, a Dutch court found that large companies have climate responsibility and ordered Shell and its subsidiaries to do more to protect the climate. The ruling, which also attracted much attention internationally (and especially in Germany), also sent German climate activists into raptures. Even then, it was clear that it would only be a matter of time before such lawsuits were filed in Germany as well. Now the time has come.

What happened?

On Sept. 3, 2021, a press release from Deutsche Umwelthilfe (DUH) ["German environmentaid", a private association] was published on the subject. DUH and Greenpeace are taking legal action against German corporations as of 9/03/2021 because of what the associations see as a lack of climate protection. They have called on BMW, Mercedes-Benz, Volkswagen, and Wintershall Dea to accelerate the climate-friendly conversion of their companies significantly. However, for classification: only out-of-court letters were served on the companies on 3.9.2021. Since the associations did not expect, however, obviously that these are fulfilled, upcoming lawsuits were announced. Media-effectively, of course.

What do the environmental associations want? Quite simply: the total climate-friendly restructuring of the companies' business activities. Among other things, the three German automakers are to stop selling "climate-damaging internal combustion vehicles" by 2030, and the oil and natural gas company Wintershall Dea is to stop developing new oil and gas fields by 2026 the latest. In the view of DUH and Greenpeace, these end dates for internal combustion engines and fossil fuels result from calculations by the Intergovernmental Panel on Climate Change (IPCC) and the International Energy Agency (IEA). But of course, the companies also cite the Paris climate protection agreement.

The German Constitutional Court as a helper?

Finally, they cite the German constitutional court, the "Bundesverfassungsgericht": in March 2021, Germany's highest court ruled that the German Climate Protection Act was incompatible with the German constitution (the "Grundgesetz"). The reason: it lacked sufficient requirements for emissions reductions from 2031 onwards. The German government updated the law before the parliamentary elections in September 2021.

This court decision is often misunderstood. Specifically, the Federal Constitutional Court did not believe that the current measures violate fundamental rights today. According to the court, the protection of life and physical integrity under the German constitution does include protection from harm caused by environmental pollution, no matter by whom or by what circumstances it is threatened. The state's duty to protect, which follows from the constitution, also includes the obligation to preserve life and health from the dangers of climate change, for example, from climate-related extreme weather events such as heatwaves, forest, and wildfires, hurricanes, heavy rain, floods, avalanches or landslides. It may also create an objective legal obligation to protect concerning future generations. Since property, agricultural land, and real estate may be damaged because of climate change, for example, due to rising sea levels or because of droughts, the fundamental property right also includes an obligation on the part of the state to protect property concerning the property hazards of climate change. However, the Federal Constitutional Court has not currently found any violation of these duties to protect. Doing so gave the legislature a broad scope for decision-making, also following the principle of the separation of powers under the rule of law.

However, according to the court, fundamental rights were violated in the future because the law allows certain emission limits until 2030. But: the emission possibilities remaining after 2030 would be considerably reduced by this currently broad leeway. As a result, virtually any freedom protected by fundamental rights would be jeopardized after 2030. On the other hand, citizens would also be protected from having burdens unilaterally shifted into the future. Therefore, the legislature should have taken precautions to ensure a freedom-preserving transition to climate neutrality. The German government responded swiftly to this with a new law.

The decision has been the subject of much debate in Germany and is legally controversial. But for context, it concerns the relationship between citizens and the state. More specifically, it examines what is expected of the legislature. The decision does not make any ruling on whether companies should reduce their emissions.

Legal arguments of the environmental associations

The lawyers of the environmental associations rely on provisions of German civil law. Natural persons, representatives of the associations, in their names, bring the claims. The associations believe that they have a better chance of success if natural persons sue.

The legal basis for the claims for injunctive relief or removal of interference is said to be §§ 823, 1004 of the German Civil Code. In grossly simplified terms, these provisions allow injured parties to demand injunctive relief or removal of damage from an interfering party. Historically, this was primarily intended to cover cases in which property was unlawfully infringed, e.g., a neighbor plucked the apple tree of another neighbor empty. Later, German civil court jurisprudence then extended the scope of application, for example, to include unlawful reporting in the media about celebrities. The latter could then demand injunctive relief or damages from the press.

The provisions, therefore, also indirectly protect the fundamental rights of individuals. In Germany, fundamental rights apply directly only in the relationship between the state and its citizens. Thus, citizens can use them to defend themselves against unlawful state interference, for example, if the state bans a demonstration. But the Federal Constitutional Court has ruled that fundamental rights are also objective value judgments and therefore also apply indirectly between private individuals. The environmental associations are now making this their own, arguing that the fundamental rights of their representatives have been violated because the companies are contributing to their endangerment through CO2 emissions.

What will it come down to?

However, the author considers it unlikely that the German civil courts will follow this line of argument. Here are just a few of the many possible considerations:
  • It will already be challenging to prove that the emissions of precisely these companies endanger the plaintiffs' fundamental rights. After all, there are thousands of companies worldwide that cause emissions. To be sure, the court may find that the companies contribute to global warming. But their share of this could be relatively small - and thus, there could already be a lack of impairment attributable to the companies.
  • If the courts find that the companies have been adversely affected, the next question is whether this is unlawful. After all, the companies operate based on German laws within the framework of German regulations. Can conduct that is also permitted by official approvals be illegal? There is case law that goes in this direction, but now we are dealing with core aspects of entrepreneurial activities.
The question arises whether individual companies are directly responsible for climate protection - or not the state with its regulatory powers. In this case, fundamental rights could only apply in their traditional form concerning the state. But not vis-à-vis individual companies.

Above all, however, the civil courts will indeed also ask themselves whether the enforcement of climate protection targets can also be a task for the courts, contrary to legal regulations. The core conflict remains: Even if the court believes that, the legislature is doing too little in climate protection, should a civil court prohibit an individual company from engaging in approved behavior? These difficult questions touch on the principles of our rule of law and our democracies.

One thing is sure, however: the "climate lawsuits" are attracting attention in any case.

For more information about this topic, don't hesistate to contact Dennis Hillemann.