Kaiser, et al. v. Volkswagen AG

On November 8, 2021, three claimants associated with Greenpeace Germany and Fridays for Future Germany filed an action against Volkswagen AG (VW) in the Regional Court of Braunschweig for not yet having clearly and irreversibly committed to phase out the sale of passenger cars and light commercial vehicles with internal combustion engines (ICE) by 2030. The claimants argue 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 claimants rely 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 VW is one of the first civil proceedings based on this decision. The claimants ask the court to order VW: (i) to stop placing and to have ceased placement of new ICE passenger cars and light commercial vehicles on the market after December 31, 2029; (ii) to take appropriate measures to ensure that the annual aggregated CO2 emissions (Scope 1, 2 and 3) by VW and its subsidiaries, resulting from the development, production and distribution of passenger cars and light commercial vehicles are reduced by at least 65% by 2030 (compared to 2018 levels), and, at a minimum, to keep them below this level; (iii) to take appropriate measures to ensure that throughout the Volkswagen Group, i.e. across all fully consolidated subsidiaries and brands involved in the development, production and sale of passenger cars, light commercial vehicles and passenger car services, at most 25% of the total number of passenger cars and light commercial vehicles put into circulation between 2021 and the end of 2029 are ICE vehicles; and (iv) to ensure that VW exercises its legal and actual influence in its joint ventures (not fully consolidated shareholdings) in such a way that the goals described in (i), (ii) and (iii) are met. The requested ban on the production of new ICE vehicles would take effect earlier than the 2035 effective ban proposed by the EU in July 2021. On 14 February 2023, the Landgericht Braunschweig dismissed the climate lawsuit. The court held that the action was admissible but unfounded on the merits. In particular, it rejected the claim for injunctive relief under Section 1004 of the German Civil Code (BGB), finding that the plaintiffs were obliged under Section 1004(2) BGB to tolerate any alleged impairment of their legal interests resulting from Volkswagen’s emissions. The court further reasoned that the obligations of a privately operating company cannot extend beyond the State’s duties of protection that arise directly from fundamental rights. Referring to the jurisprudence of the Federal Constitutional Court, it noted that the legislature has fulfilled those constitutional duties through the enactment of the Bundes-Klimaschutzgesetz (Federal Climate Protection Act). Volkswagen was also found to be acting in compliance with the applicable public law requirements.