In the pending Lliuya case Peruvian citizen filed a case against the German energy company RWE. The claimant demands a contribution to the costs of suitable protective measures against the danger of flooding and hence damage to his house in Huaraz, Peru, likely to resulting from a spill-over caused by a nearby glacier lake that is melting due to climate change. The case is mainly based on § 1004 (in combination with § 823 para. 1 German Civil Code) which includes the principle of nuisance law that, if the ownership is unlawfully interfered with, the owner may require the disturber to remove the interference. The claimant argues that RWE contributed to global warming by emitting 0,47 % of world-wide emissions and hence created a situation which, in a linear fashion, adds to the risk of flooding through a melting glacier. Some of the intricate problems of the case are how to deal with damage that occurs at a long distance, in the long term, and in a cumulative fashion and related questions of causation.
Moreover, the NGO Deutsche Umwelthilfe brought actions against BMW and Mercedes-Benz arguing that they produce vehicles which are particularly damaging for the climate and therefore infringe a fundamental right to climate protection. The claims are based on the right to injunctive relief under § 1004 para. 1 and § 823 para. 1 German Civil Code. The NGO argues that the defendants are inter alia obliged to prevent infringements of fundamental rights by refraining from the distribution of climate-damaging vehicles with a combustion engine after 2030.
Future claims under contract law, tort law, hazard- and strict liability law as well as various claims stemming fromproperty law, in particular nuisance law are generally conceivable. Claims can be filed against activities that have effects elsewhere in the world, as they can be based on either the place of action or of the result of an action. Potential cases may, for instance, concern situations where property owners have to adapt to an increased risk of flooding or suffer from damage after extreme weather events. Strict liability and nuisance law may be the most suitable bases for successful claims in this regard, as they do not require a fault. Claims against damage or nuisance to property caused by private actors need to show cumulative, long-term and distant damage and issues of causality may arise.
- Luciano Lliuya v. RWE, 2015, (currently pending)
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/germany
This country report has been produced by Lea Busch, Research Assistant, Catherine Hall, C2LI Senior Research Assistant and Lennart Wegener, C2LI Legal Analyst, in collaboration with Prof. Dirk Hanschel (C2LI National Rapporteur Germany). The summary is based on Dirk Hanschel, “Climate Change and the Individual” in M. Schmidt-Kessel, German National Reports on the 20th International Congress of Comparative Law, Mohr Siebeck, 2018.