German Climate Activists File Climate Change Lawsuits Against Major German Car Manufacturers To Prohibit Selling Combustion Engine Cars

At the beginning of September 2021, climate activists affiliated with German NGO Deutsche Umwelthilfe ("DUH") sent pre-action letters to major German car manufacturers Daimler and BMW and to Wintershall, Germany's largest oil and gas company (see our previous Client Alert). The activists requested ,inter alia, that the companies reduce their greenhouse gas ("GHG") emissions. After both car manufacturers rejected those requests, the activists brought the first climate change lawsuits against private companies aiming at an emission reduction following the landmark decision of the German Federal Constitutional Court.

1.    Background 

The lawsuits recently submitted against car manufacturers mark a significant step in a new era of climate change litigation in Germany. Arguably, this era has begun with the landmark decision of the German Federal Constitutional Court (FCC) dated 24 March 2021, by which the FCC found the German Climate Change Act to be partially unconstitutional for violating the plaintiffs'¹ fundamental freedom rights in the future.² Following the FCC's decision, the German legislator promptly tightened up the German Climate Change Act, setting a new path to GHG neutrality by 2045 with stricter emission goals. The amended Climate Change Act entered into force on 31 August 2021. 

Another significant push towards German lawsuits against emitting companies came from the Hague District Court's decision in Milieudefensie et al. v. Royal Dutch Shell of 26 May 2021:³ in that decision, the Court ordered Shell to reduce its CO₂ emissions by 45 percent by 2030 compared to 2019 levels. Despite the differences between Dutch and German law (see below), German climate activists from DUH and their lawyers announced similar proceedings against German companies shortly after the Milieudefensie decision.⁴

2.    The Activists' Requests 

On 21 September 2021, the DUH activists filed lawsuits against BMW before the Regional Court of Munich and against Daimler before the Regional Court of Stuttgart after both car manufacturers had rejected their pre-action requests.

The activists request that the Courts order the car manufactures to 

• globally refrain from selling combustion-engine and hybrid cars beyond 31 October 2030 unless the car manufacturers prove GHG neutrality for the automobiles sold after 31 October 2030, and 
• globally refrain from selling combustion-engine and hybrid cars between 1 January 2022 and 31 October 2030 emitting a combined total of more than 604 tons of CO₂ (BMW) and 511 tons of CO₂ (Daimler) unless the car manufacturers prove GHG neutrality for the amounts emitted above this limit. 

Alternatively, the activists request that the Courts at least order the car manufacturers to refrain from selling combustion-engine and hybrid cars only in Germany beyond 31 October 2030 unless they prove GHG neutrality for the automobiles sold after 31 October 2030. 

The timing of the lawsuits is remarkable since the European Commission recently announced its proposal to phase out the sale of combustion-engine cars by 2035.⁵ In their lawsuits, the DUH activists apparently imply that the proposal is insufficient arguing that, however, EU law does not provide for individual rights in this regard.⁶

3.    The Activists' Legal Arguments

The activists base their complaints on a combination of tort law and fundamental rights enshrined in the German constitution.⁷

On the one hand, the activists rely on the FCC's jurisprudence as regards the "intertemporal" effect of fundamental (freedom) rights, They argue that combustion-engine cars consume such significant portions of the global and national CO₂ budget available before GHG neutrality must be achieved in 2045 that major emission reduction burdens are shifted onto future periods, resulting in serious future impairments of freedom.

On the other hand, however, the activists adopt a surprising approach to justify the violation of their own rights (which is necessary for a successful tort claim): They argue that the car manufacturers' CO₂ emissions violate their future general personality rights (allgemeine Persönlichkeitsrechte). General personality rights, which are non-statutory and rooted in fundamental freedom rights, were developed by the FCC and other German courts to protect individuals from attacks to their private life and personality such as stalking, doctored photos, or fictitious interviews.⁸

The activists contend that their general personality rights are impaired by anticipated restrictions on their future general way of life. However, the FCC did not address a violation of the general personality right in its decision of 24 March 2021. 

Whether the seized courts will agree that general personality rights are part of the impaired future fundamental freedom rights as established by the FCC, remains therefore an open question – the more so since the courts will likely have to weigh the rights of the car manufacturers against the activists' general personality rights. 

Another significant legal hurdle the activists may face is the question of a causal link (which they generally need to prove): the activists base the causal link on the 1.7°C goal determined by the Intergovernmental Panel on Climate Change ("IPCC"). According to the IPCC, the remaining global CO₂ budget to limit global warming to 1.7 degrees above pre-industrial times was 550 gigatonnes of CO₂ as of 1 January 2021.⁹ The activists claim that the car manufacturers irreversibly consume large portions of the remaining budget through CO₂ emission that can be traced to them. 

However, it is untested before German courts whether the abovementioned CO₂ emissions can be included in the plaintiffs' calculation from a tort law perspective, since large portions of the emissions do not originate from the car manufacturers themselves, but from the use made of their cars by third parties. The latter arguably severs the causal link to car manufacturers, which merely produce the automobiles but do not control their use. 

In addition, the activists support their opinion by leveraging Milieudefensie et al. v. Royal Dutch Shell, since the Hague District Court found that Shell's responsibility to respect human rights exists regardless of whether the Dutch state meets its human rights obligations. Moreover, certain parallels can be drawn between the German complaints and the complaint that led to the Milieudefensie decision. Plaintiffs in both cases rely on a combination of tort law and fundamental rights, and corroborate their claims with references to the goals of the Paris Agreement and evidence in IPCC reports. However, the fundamental rights relied upon in Milieudefensie are the right to life and the right to private and family life, as enshrined in Articles 2 and 8 of the European Convention on Human Rights, while the German claimants rely upon the general personality right. That said, the reference to Milieudefensie in the German court proceedings underlines a trend that arguments in the field of climate change (the impact of which is global per se) are not limited to the respective home jurisdiction.

4.    Outlook

The activists are entering uncharted legal territory with their claims and even more with their argument that GHG emissions can violate general personality rights under German law. Thus, the outcome of the lawsuits cannot be predicted with certainty. The decisions of the Regional Courts in Munich and Stuttgart (which could also yield different outcomes) will have a significant impact on the future of climate change litigation in Germany. It is almost certain that the decisions will go through appeals, whatever their outcome may be. 

Likely, these lawsuits (especially if successful) may pave the way for more lawsuits against emitting companies from other activists.¹¹ Certainly, these lawsuits reflect the special challenges associated with climate change, but it remains to be seen whether climate protection will henceforth be perpetuated by courts or remain in the hands of the legislator. This holds true in particular since the German government, which drafted the bill for the Climate Change Act (including its amendments), denied the possibility for individuals to derive rights and claims from this Act.¹² It is at least questionable, whether such individual rights can be established "through the back door" by court decisions.

Be that as it may, the activists filed their lawsuits in a rapidly evolving regulatory context (both domestic and international): as noted at the outset the German legislator amended its Climate Change Act, but recently the European Commission also released a far-reaching package of proposals to tackle climate change, including the aforementioned proposal to phase out combustion engine cars by 2035.¹³ Companies should therefore continue to monitor this increasingly complex interface between ever stricter laws in the field of climate change and ongoing court cases based on novel legal theories (even outside their home jurisdictions).

_{1 The group of plaintiffs included inter alia young climate activists of Fridays for Future.
2 Cf. Burianski, Parise Kuhnle, "Reshaping Climate Change Law", Client Alert dated 14 July 2021, available at: https://www.whitecase.com/publications/alert/reshaping-climate-change-law
3 Clarke, Connellan, Kerschner, MacLennan, De Catelle, Hansen, "Milieudefensie et al v. Shell: Climate change claimants prevail again in Dutch court – this time, against corporations", Client Alert dated 28 May 2021, available at: https://www.whitecase.com/publications/alert/milieudefensie-et-al-v-shell-climate-change-claimants-prevail-again-dutch-court
4 Cf. https://www.marktundmittelstand.de/technologie/deutsche-umwelthilfe-bereitet-klimaklagen-gegen-unternehmen-vor-1298061/
5 European Commission, "European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions", available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3541
6 Cf. Statement of Claim in Barbara Metz et al. v. BMW, p. 10 with reference to Armando Carvalho and Others v European Parliament and Council of the European Union, ECJ decision dated 25 March 2021, docket no. Armando Carvalho and Others v European Parliament and Council of the European Union, available at: https://www.duh.de/fileadmin/user_upload/download/Pressemitteilungen/Umweltpolitik/Klimaschutz/Klageschrift_BMW.pdf
7 Sec. 1004 (1), 823 (1) German Civil Code.
8 Sprau in Palandt, German Civil Code, 80 Ed. 2021, Sec. 823 marginal 113.
9 Cf. https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf
10 Milieudefensie v Royal Dutch Shell C/09/571932 / HA ZA 19-379, para. 4.4.15.
11 For instance, Greenpeace and Fridays for Future activists already had filed a parallel pre-action against another German car manufacturer but with a longer deadline expiring on 29 October 2021, cf. Burianski, Hoffmann, Parise Kuhnle, "NGOs Target German Companies to Reduce GHG Emissions", Client Alert dated 10 September 2021, available at: https://www.whitecase.com/publications/alert/ngos-target-german-companies-reduce-ghg-emissions
12 German Parliament, document no. 19/32154 dated 31 August 2021: reply of the German Government to a small inquiry of the representative Sandra Weeser, Michael Theurer, Renata Alt, other representatives and the fraction of the Free Democratic Party (document no. 19/31902), p. 2 (answer to question no. 1 a)
13 European Commission, "European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions", available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3541}

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