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.

Kaiser, et al. v. Volkswagen AG

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Kaiser, et al. v. Volkswagen AG - judgment

Filed

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. 

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Actions or measures to adapt terrestrial systems to climate change.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Replacing technologies that burn fossil fuels directly with alternatives powered by electricity.

Actions to reduce emissions in energy generation and supply.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

woman and genders outside of the gender binary

The activities of industries that transforms raw materials into finished goods through industrial processes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves activities to move goods and people, alongside the storage of products.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

Activities that relate to the production of goods and services from forests.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Kaiser, et al. v. Volkswagen AG - judgment

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Greenhouse gas

Economic sector

Adaptation/resilience

Finance