Deutsche Umwelthilfe (DUH) v. Bayerische Motoren Werke AG (BMW)

On September 20, 2021, environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany) filed an action against BMW in the Regional court of Munich for not yet having clearly and irreversibly committed to phase out the sale of passenger cars with internal combustion engines (ICE) by 2030. DUH argues that by failing to do so, the automaker is violating the fundamental right to climate protection and impinging upon the rights and freedoms of future generations, as phase out would be necessary for the company to adhere to its allocated carbon budget. The claim is grounded in the Paris Agreement and German Tort Law. The plaintiff relies on the earlier decision by the Federal Constitutional Court (BVerfG) on the German Climate Protection Act, where the Court accepted that Germany has a limited total CO2 emissions budget remaining at its disposal (Neubauer v. Germany). The action filed against BMW is one of the first civil proceedings based on this decision. DUH asks the court to hold that, (i) unless BMW can prove GHG neutrality for Scope 3 CO2 emissions resulting from the intended use of their ICE passenger cars, after October 31, 2030 BMW is obliged to refrain from placing ICE passenger cars on the market; and (ii) unless BMW can prove GHG neutrality for Scope 3 CO2 emissions globally exceeding a total of 604 million tons resulting from the intended use of ICE passenger cars (based on an average mileage of 200,000 km) between January 1, 2022 and October 31, 2030, BMW is obliged to refrain from placing new ICE passenger cars on the market. Alternatively, DUH asks the court to order BMW to stop placing new ICE passenger cars on the German market after October 31, 2030, unless BMW can prove GHG neutrality for the intended use of said cars. The requested ban on producing new ICE cars would take effect earlier than the 2035 effective ban proposed by the EU in July 2021. On 21 September 2023, the Regional Court of Munich dismissed the climate lawsuit. The court held that, although climate-related interferences with fundamental rights are not excluded in principle, the continued sale of combustion vehicles does not currently constitute an unlawful infringement of the general right of personality. In light of the existing national and EU climate regulatory framework, the court found no basis for civil-law obligations extending beyond the legislature’s discretion as recognised by the Bundesverfassungsgericht. On 12 October 2023, the Oberlandesgericht München (32 U 936/23) dismissed the appeal and fully affirmed the first-instance judgment. It emphasised that BMW markets its vehicles in compliance with applicable law and that the constitutional jurisprudence on the Climate Protection Act provides no indication that current legislation inadequately protects fundamental rights against the effects of climate change.