Background
In autumn 2021, individuals affiliated with Deutsche Umwelthilfe, Fridays for Future and Greenpeace filed claims at various German courts against automakers (BMW AG, Mercedes-Benz AG and Volkswagen AG) and Germany's largest oil and gas company (Wintershall Dea AG).
The plaintiffs inter alia requested an order that the automakers are to cease and desist from selling vehicles operating by way of internal combustion engines beyond 2029 (Volkswagen AG) and 2030 (BMW AG and Mercedes-Benz AG), respectively, whereas they sought to prevent Wintershall DEA AG, amongst other things, from exploring new oil and gas fields beyond 2025. The plaintiffs based their claims on a combination of tort law and fundamental rights enshrined in the German constitution. In this, they relied on the landmark decision of the German Federal Constitutional Court ("FCC") dated 24 March 2021 whereby the FCC found that the then-current version of the German Climate Change Act ("Bundesklimaschutzgesetz") violated fundamental rights because its provisions irreversibly shifted the burden for major GHG emission reductions onto periods after 2030, thereby violating the plaintiff's fundamental rights in the future (inter-temporal effect).1 Based on this, the plaintiffs argued that that the use of vehicles operating by way of internal combustion engines and the combustion of oil gas, consumes such significant portion of the global and national CO2 budget available, before GHG neutrality must be achieved in 2045, that major emission reductions are shifted onto future periods resulting in a serious future impairment of their freedom.
By judgment of 13 September 2022, the Regional Court of Stuttgart ("Regional Court") dismissed the claim against Mercedes-Benz AG in full.
The Regional Court's Judgement
The Regional Court held that the plaintiffs are not entitled to the sought-after injunction as the plaintiff's did not establish that the sale and use of vehicles operating by way of internal combustion engines violate their rights.
At the outset, the Regional Court reasoned that the sale of such vehicles operating by way of internal combustion engines may constitute an indirect violation of rights which would have to be determined by weighing the parties' relevant rights, i.e. the plaintiffs' general personality right and the automakers' freedom of enterprise and ownership. The weighing of the parties' rights, in the Regional Court's view, requires that the resulting impairment on the plaintiffs from selling vehicles operating by way of internal combustion engines are at least foreseeable. However, such circumstances were not established in the court's view. The Regional Court held that the plaintiff's assume that CO2 emission will remain at the current level and that there will be no developments leading to a reduction of Greenhouse Gas Emissions in the atmosphere. However, as this is not certain, in the Regional Court's view, it is not foreseeable that the sale of vehicles operating by way of internal combustion engines will lead to future restrictions by the German legislator.
The Regional Court, moreover, held that this assessment would not be affected by the plaintiff's effective legal protection of their constitutional rights as the plaintiffs' request is contrary to the constitutional division of powers between the legislator and the judiciary; the courts may only apply existing laws whereas it is the legislator's obligation to provide a legal framework to prevent further global warming. Hence, the plaintiffs, in view of the Regional Court, could not be granted a right to correct legislative decisions perceived as inadequate via German civil law.
The decision is not surprising, as the Regional Court had expressed doubts about the claim's merit in the oral hearing of 21 September 2022.2
However, as the Regional Court 's findings are guided by the established principles of German tort law, it is noteworthy that the court considered the plaintiff's general personality right to be relevant to the issue. Given the Regional Court's conclusion that current impairments of the general personality right are not evident, this right could only be relevant for weighing the parties' rights if it has an inter-temporal effect (as set out by the FCC). Whether this is in fact an implicit recognition of an inter-temporal effect of the general personality right, remains unclear. Reason being the Regional Court rejected a violation of this right already on a factual level by arguing that it is not established that the further production of internal combustion engines will lead to freedom-restricting measures by the legislator.
Irrespective of this, the judgement indicates that legal theories applied in other jurisdictions in connection with climate change associated claims may affect the merit of claims brought before German national courts. The Regional Court's essential finding, that it is bound by existing laws whereas it is the legislator's obligation to provide a legal framework to prevent further global warming, shares certain similarities with the common law Doctrine of Political Question which refers to the idea that an issue is so politically charged that federal courts should not hear the issue.3
Given this complex interface between established tort law principles and novel legal theories, which also subject of the parallel proceedings against BMW AG, Volkswagen AG and Wintershall Dea AG, German courts will be dealing with climate change associated claims for several years to come. This is also true because the plaintiffs already declared to appeal the judgment of the Regional Court of Stuttgart.4
Footnotes
1. Cases no. BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, and 1 BvR 288/20.
3. Greenpeace v. United Kingdom; Court of Sessions Scotland.
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