Climate Change litigation in Germany Update: Legal proceedings filed against Mercedes-Benz, BMW and Wintershall Dea

Following on from letters threatening legal action, written by environmental NGO, Deutsche Umwelthilfe (DUH) and Greenpeace to Volkswagen, Mercedes-Benz, BMW and gas and oil firm Wintershall Dea, DUH filed lawsuits against BMW and Mercedes-Benz in the German courts on 21 September 2021, and against Wintershall Dea on 4 October 2021.

These represent the first climate change lawsuits against private companies explicitly aimed at reducing emissions in Germany, and attempts to build on the decision by the German Federal Constitutional Court which found Germany’s Federal Climate Protection Act incompatible with fundamental rights on the basis that it does not provide sufficient reduction targets to comply with the country’s emissions reduction obligations (Germany's Federal Climate Protection Act incompatible with fundamental rights, Henning Schaloske, Nigel Brook (clydeco.com)).

The claims are based on the Paris Agreement and German Climate Protection Act and argue that the car manufacturers are violating the rights of future generations by failing to tighten their carbon emissions targets and refusing to commit fully to ending production of fossil fuel emitting cars by 2030. Further, Wintershall Dea would be violating the rights of future generations by consuming significant parts of the CO2 budget and refusing to commit to a Paris-compatible CO2 budget.

DUH has asked the German courts to order the car manufacturers to:

• Cease all sales of internal combustion engine and hybrid cars worldwide beyond 31 October 2030, unless they can prove greenhouse gas neutrality for these cars at this time; and 
• Cap its sales of internal combustion engine and hybrid cars worldwide from 1 January 2022 to 31 October 2030 at cumulative total emissions of 604 million tons of CO2 (BMW) and 511 million tons of CO2 (Mercedes-Benz) (assuming average mileage of 200,000km per vehicle), unless the companies prove greenhouse gas neutrality for any volumes emitted beyond these limits.

DUH has asked the German Courts to order the oil and gas company to:

• Cease to globally extract natural gas and/or crude oil that emits more than 0.62 gigatonnes of CO2 (natural gas) or more than 0.31 gigatonnes of CO2 (crude oil) when burned (calculated from 1 January 2021), unless the defendant can prove greenhouse gas neutrality for the CO2 emissions in excess of this amount.
• Cease to open new oil or gas fields, nationally or internationally, after 31 December 2025 or to participate in such openings by means of an equity interest.

The requested ban on producing new internal combustion engine cars would be earlier than the 2035 ban currently proposed by the EU.

Mercedes-Benz owner Daimler, has said that the claim is groundless and that it has “long provided a clear statement for the path to climate neutrality: it is our aim to be fully electric by the end of the decade – wherever market conditions allow”. BMW has stated that its climate targets are already at the forefront of the industry.

A judgment from the German courts on the merits of this claim is likely to be some time away, but it will undoubtedly have a substantial bearing on future climate change legal proceedings in Germany and elsewhere.

See our previous update here for more information on the letters sent by DUH and Greenpeace.