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Germany

Bremen

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Niedersachsen

Berlin

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Nordrhein-Westfalen

Baden-Württemberg

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Hamburg

Rheinland-Pfalz

Brandenburg

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Mecklenburg-Vorpommern

Schleswig-Holstein

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 June 30, 2021, youth plaintiffs Marlene Lemme, David Schiepek, Lukas Schulz, Stefan Emmerichs, Julius Papst, Kaspar Seßner, Friedl Seßner, Andreas Mäckler, Clara Göppel-Ramsurn and Lucie Göppel-Ramsurn brought a claim against the state of Bavaria for the inadequacy of its adopted climate law (2020 Climate Protection Act; BayKlimaG). This action is subsidiary to a constitutional claim by the same plaintiffs, to be declared settled provided that the constitutional complaint is upheld. 

The law under review, Bavaria’s 2020 Climate Protection Act (BayKlimaG) aims to: (i) reduce greenhouse gas emissions by 55% compared to 1990 levels, to 5 tons per inhabitant per year by 2030; and (ii) achieve climate neutrality by 2050. From 2030 onwards, the state is required to offset any emissions above the permitted levels. To achieve these goals, the state set up a climate protection program. The plaintiffs claim that the law lacks provisions for setting annual emission levels, specifications on sector-specific targets, deadlines for the climate protection program, compliance and adaptation monitoring. Plaintiffs argued that these measures are insufficient to achieve the overall federal targets of the Federal Climate Protection Act.

The plaintiffs relied on the Constitutional Court’s decision in <a href="https://climatecasechart.com/non-us-case/neubauer-et-al-v-germany/">Neubauer v. Germany</a>, following which the German government was ordered to adjust its climate goals at the federal level. Plaintiffs argue that ambitious climate protection is also required at the state level to achieve carbon neutrality. Plaintiffs submit that states bear co-responsibility for protecting lives and civil liberties, including safeguarding the natural foundations of life for future generations, within their own sphere of competence. Plaintiffs argued that the Bavarian law falls short of these constitutional requirements. Plaintiffs asserted a violation by the state of its duty to protect, and invoked their constitutional rights, to defend themselves against considerable future restrictions on their freedoms which – in view of rapidly progressing climate change – are to be considered inevitable and are already reflected in the inadequate action of the legislature of Bavaria.

In light of this, plaintiffs argue that the Bavarian Climate Protection Act needs to be adjusted, as it fails to establish a minimum structure to ensure equal burden-sharing and restrictions on fundamental rights across generations; lacks legally regulated time limits for establishing a climate protection program; and fails to set interim goals for the period until 2030. According to plaintiffs, it also fails to specify yearly emissions limits, sector specific targets, or regulate mechanism for the updating of reduction goals and does not set provisions for readjusting emissions targets. Plaintiffs argue that national climate protection and reduction goals can only be reached if adequate governance structures are in place at the state level. 

On January 18, 2022, the First Senate of the Federal Constitutional Court did not admit the eleven complaints for adjudication, on the basis of a lack of adequate prospects, including the constitutional claim against Bavaria. Widely in alignment with its decision in (Neubauer v. Germany), the Court acknowledged that greenhouse gas reduction burdens cannot be unilaterally offloaded onto the future. However, in the cases at hand, complainants’ fundamental rights were not violated preemptively, because the state legislatures are not subject to a CO2 emissions budget, which (according to the Court in Neubauer v. Germany) is a prerequisite for such an effect. Rather, it is the federal German legislature that is bound by the CO2 budget, but has a prerogative with respect to its implementation. As regards the federal states, the Court clarified that they too are responsible for climate protection, in particular by virtue of Article 20a of the Basic Law.  A decision on this subsidiary claim before the Bavarian Constitutional Court is still pending. 

On June 24, 2021, environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany) brought a claim against the state of Bavaria for failing to set up a climate protection program. In its submission, DUH asks the Higher Administrative Court to order the Bavarian government to adopt a new climate protection program, whose measures are suited to: (i) reduce the GHG emissions in Bavaria by at least 55% by 2030; (ii) reduce GHG emissions to less than 5 tons per inhabitant of Bavaria; and (iii) achieve climate neutrality by 2050. 

Claimant argues that this lack of a climate protection program is in violation of Bavaria’s 2020 Climate Protection Act (BayKlimaG), which explicitly requires the state to establish a climate protection program for the implementation of its reduction goals (albeit not stipulating a detailed timeframe). Claimant relies on the Constitutional Court’s findings in <a href="https://climatecasechart.com/non-us-case/neubauer-et-al-v-germany/">Neubauer v. Germany</a>, which recognized the constitutional nature of climate protection (as a means of guaranteeing and protecting fundamental rights), to argue that a new climate protection program has to be set up. As the state’s only existing climate protection program was adopted in 2015 –  5 years before  the Bavarian Climate Protection Act entered into force in 2020 and has not been updated since – claimant submits that it is inadequate to address the requirements of the BayKlimaG. 

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