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BMW climate lawsuit gets first hearing in Germany

Out-Law News | 16 Nov 2022 | 5:01 pm | 3 min. read

The first hearing has taken place in Germany of a case which seeks to force carmaker BMW to rebuild its business in a climate-friendly way and "drastically reduce" the CO2 emissions of its vehicles.

An oral hearing took place at the Munich I Regional Court in the case brought in 2021 by three directors of the German nature and consumer protection organisation Deutsche Umwelthilfe (DUH) against BMW.

The lawsuit demands that between 1 January 2022 and 31 October 2030 BMW build new passenger cars that emit a maximum of 604 million tons of CO2, or prove greenhouse gas neutrality for any CO2 emissions beyond this. The three directors are also suing to stop BMW from selling new passenger cars with combustion engines from 31 October 2030 onwards.

The oral hearing dealt with the question of whether it is up to the private sector or the legislator to counteract climate change.

When filing the lawsuit, DUH said that it had initially requested in September 2021 in a claim letter that BMW commit to "sufficient climate protection and the end of combustion engines by 2030". According to the DUH, BMW had refused to do so.

In their complaint the three directors refer to the Paris Agreement on Climate Protection, which was among others signed by Germany, and aims to limit global warming to 1.5 degrees compared to the temperature before the industrial age. The complaint also refers to a consequently available residual budget of greenhouse gas emissions and to the landmark decision on climate protection by the German Federal Constitutional Court from last year. With its decision, the court had obliged the legislator to amend Germany’s Climate Protection Act. The court said that parts of the law were unconstitutional, as it did not regulate clearly enough how the legally stipulated greenhouse gas reduction is to be achieved in the period after 2030. The court held that this violated the civil liberties of the complainants, some of whom were very young, as high emission reduction burdens would be postponed to periods after 2030.

The directors of DUH also argue that it would endanger their freedom if the agreed climate targets were not met. However, they base their claims primarily on Section 823(1) of the German Civil Code (BGB), which states that someone who "intentionally or negligently injures the life, body, health, freedom, property or other right of another unlawfully" must compensate the other for damages. They also rely on the rules on injunctive relief under section 1004(1) of the Civil Code.

The car manufacturer argued that the claim is a concealed “Popularklage”, meaning that the directors do not in fact represent their own rights in court, but the rights of the general public, and that for this reason the action is inadmissible. In addition, the car manufacturer said it complied with all requirements of public law, so there was no breach of duty on its part. Furthermore, the car manufacturer held that it was not the right defendant, as climate protection was a matter for the state.

At the hearing, the court expressed doubts about the merits of the claim, as civil proceedings in their traditional form were intended for conflicts between two parties. Climate neutrality was a complex matter with many actors involved, the court said. It also pointed out that the BVerfG's climate decision was addressed to the state and not to the private sector. The court also pointed out that the Scientific Service of the German Bundestag had already dealt with the issue of climate lawsuits in 2016 and distinguished between lawsuits against states and lawsuits against businesses. According to this, climate lawsuits are not entirely impossible, but there are considerable hurdles for climate lawsuits against businesses. The court said it will issue its ruling on the case on 7 February 2023.

There are other cases against car manufacturers pending before the German courts. For example, a case against Volkswagen is currently pending before the Detmold Regional Court: an organic farmer filed the lawsuit with the support of Greenpeace. He argues that the second largest car manufacturer in the world is partly responsible for the damage caused by droughts and heavy rains to his farm and forest due to the CO2 emissions of its vehicles. A second oral hearing is scheduled for 3 February 2023.

A lawsuit against Mercedes Benz, which DUH had filed alongside the lawsuit against BMW, was dismissed by the Regional Court of Stuttgart in September 2022. DUH announced that it would appeal the judgment.

In late October, the EU agreed on a ban on the sale of new cars with combustion engines from 2035 onwards, although it is still open whether vehicles powered by e-fuels will also be covered by the ban.

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